[Federal Register: October 28, 2004 (Volume 69, Number 208)]
[Rules and Regulations]
[Page 62943-62990]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28oc04-14]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Mariana Fruit Bat and Guam Micronesian Kingfisher on
Guam and the Mariana Crow on Guam and in the Commonwealth of the
Northern Mariana Islands; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1019-AI25
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Mariana Fruit Bat and Guam Micronesian
Kingfisher on Guam and the Mariana Crow on Guam and in the Commonwealth
of the Northern Mariana Islands
AGENCY: Fish and Wildlife Service, Interior
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the Mariana fruit bat (Pteropus
mariannus mariannus), Guam Micronesian kingfisher (Halcyon cinnamomina
cinnamomina), and Mariana crow (Corvus kubaryi) pursuant to the
Endangered Species Act, as amended (Act or ESA). We are designating
approximately 376 acres (ac) (152 hectares (ha)) on the island of Guam
for the Mariana fruit bat and the Guam Micronesian kingfisher. For the
Mariana crow, we are designating approximately 376 ac (152 ha) on the
island of Guam and approximately 6,033 ac (2,442 ha) on the island of
Rota in the Commonwealth of the Northern Mariana Islands (CNMI). On
Guam, the Mariana fruit bat, Mariana crow, and Guam Micronesian
kingfisher critical habitat unit boundaries are identical. On Rota,
critical habitat is designated only for the Mariana crow. Counting
identical or overlapping units only once for all three species, we are
designating approximately 6,409 ac (2,594 ha) on Guam and Rota.
DATES: This rule becomes effective November 29, 2004.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for inspection, by appointment, during normal business hours
at the Pacific Islands Fish and Wildlife Office, U.S. Fish and Wildlife
Service, 300 Ala Moana Boulevard, Room 3-122, Box 50088, Honolulu, HI
96850. Copies of the final rule, addendum to the economic analysis, and
draft economic analysis are available by writing to the above address
or by connecting to the Service Internet Web site at http://pacificislands.fws.gov
.
FOR FURTHER INFORMATION CONTACT: Gina Shultz, Assistant Field
Supervisor, Pacific Islands Fish and Wildlife Office, U.S. Fish and
Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Box 50088,
Honolulu, HI 96850 (telephone: 808/792-9400; facsimile: 808/792-9581).
SUPPLEMENTARY INFORMATION:
Designation of Critical Habitat Provides Little Additional Protection
to Species
In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the ESA can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 445 species (36 percent)
of the 1,244 listed species in the U.S. under the jurisdiction of the
Service have designated critical habitat. We address the habitat needs
of all 1,244 listed species through conservation mechanisms such as
listing, section 7 consultations, the section 4 recovery planning
process, the section 9 protective prohibitions of unauthorized take,
section 6 funding to the States, and the section 10 incidental take
permit process. The Service believes that it is these measures that may
make the difference between extinction and survival for many species.
We note, however, that a recent 9th Circuit judicial opinion,
Gifford Pinchot Task Force v. United States Fish and Wildlife Service,
has invalidated the Service's regulation defining destruction or
adverse modification of critical habitat. We are currently reviewing
the decision to determine what effect it may have on the outcome of
consultations pursuant to Section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent to sue relative to critical habitat, and to comply
with the growing number of adverse court orders. As a result, listing
petition responses, the Service's own proposals to list critically
imperiled species, and final listing determinations on existing
proposals are all significantly delayed. Litigation over critical
habitat issues for species already listed and receiving the Act's full
protection has precluded or delayed many listing actions nationwide.
The accelerated schedules of court-ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially-imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National
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Environmental Policy Act, are all part of the cost of critical habitat
designation. None of these costs result in any benefit to the species
that is not already afforded by the protections of the Act enumerated
earlier, and they directly reduce the funds available for direct and
tangible conservation actions.
Background
The Territory of Guam (Guam) is the largest and southernmost of the
16 islands in the Mariana archipelago. Guam is located at
13[deg]30[min] N and 145[deg] E and is approximately 30 miles (mi) (49
kilometers (km)) long and 4 to 9 mi (7 to 15 km) wide. Rota is the
fourth largest island in the Mariana archipelago and is located 30 mi
(49 km) north of Guam at 14[deg]10[min] N and 145[deg] E. The island is
approximately 11 mi (18 km) long and 2.5 to 4 mi (4 to 7 km) wide. We
provided a detailed physical description for the islands of Guam and
Rota in the proposed critical habitat designation (67 FR 63738).
Taxonomy, Life History, Distribution, Habitat, and Threats
Mariana Fruit Bat (or Fanihi)
This species is a medium-sized fruit bat that historically
inhabited all of the major islands in the Mariana archipelago. At
present, only the Guam population of Mariana fruit bat is listed as
endangered. A proposed rule to reclassify the Guam population of the
species as threatened and also list the population in the CNMI as
threatened was published on March 26, 1998 (63 FR 14641). The Mariana
fruit bat typically roosts in colonies in native forest during the day
and forages widely at night on nectar, fruit, and leaves (Wiles 1983).
On Guam, the Mariana fruit bat was historically found throughout native
forests. However, by 1995, the island population had been reduced to
between 300 and 500 and was restricted primarily to forest on the
northern tip of the island (Wiles et al. 1995), although there are
occasional reports of bats from southern Guam around Fena Reservoir
(Morton and Wiles 2002). Illegal hunting is believed to be one of the
major causes of decline in this species, but predation by the brown
treesnake (Boiga irregularis) also may be an important limiting factor
(Wiles 1987). For additional information on the Mariana fruit bat and
threats to the species, the reader is referred to the critical habitat
proposed rule (67 FR 63738, October 15, 2002).
Mariana Crow (or Aga)
The Mariana crow is a small, black crow endemic to the islands of
Guam and Rota. The Mariana crow is omnivorous and typically nests in
native forest (USFWS in prep.). On Guam, the crow historically was
widely distributed in forest habitats, but densities were highest in
limestone forests and lowest in grasslands and areas with human
settlement (Jenkins 1983; Michael 1987). Similar to other Guam forest
birds, the crow disappeared from most of the island with the spread of
the brown treesnake and was restricted to the northern cliff forests by
the mid 1970s. The population on Guam now numbers 12 birds, 10 of which
were translocated from Rota or mainland zoos (Aguon 2002). On Rota,
Mariana crows were considered relatively common and widely distributed
in 1976 (Pratt et al. 1979). The first island-wide survey of crows on
Rota in 1982 estimated a population of 1,318 individuals (Engbring et
al. 1986). Crows still are distributed widely on Rota (Morton et al.
1999), but results of several surveys indicate that the crow population
has declined since the early 1980s. The primary factors in the decline
of crows on Rota are uncertain; however, habitat loss and degradation,
human persecution, and predation by introduced rats may be factors
(USFWS in prep.). For additional information on the Mariana crow and
threats to the species the reader is referred to the critical habitat
proposed rule (67 FR 63738, October 15, 2002).
Guam Micronesian Kingfisher (or Sihek)
The Guam Micronesian kingfisher is a forest-dwelling kingfisher
endemic to Guam. The Guam Micronesian kingfisher preys on insects and
small vertebrates and nests in cavities excavated in soft, rotten wood
(Jenkins 1983; Marshall 1989). The Guam subspecies was common
throughout Guam as recently as 1945 (Marshall 1949), and was found
throughout most forest types (Jenkins 1983). Up to 3,000 birds were
recorded in 1981 (Engbring and Ramsey 1984), but the kingfisher
declined rapidly and now is extinct in the wild. However, a captive
population of 63 birds has been established and is maintained at 11
zoos in the mainland United States and by the Guam Division of Aquatic
and Wildlife Resources (B. Bahner, National Zoological Association, in
litt. 2003). The primary factor in the decline of the Guam Micronesian
kingfisher was predation by the introduced brown treesnake (Savidge
1986, 1987). For additional information on the Guam Micronesian
kingfisher and threats to the species the reader is referred to the
critical habitat proposed rule (67 FR 63738, October 15, 2002).
Previous Federal Action
On October 15, 2002, we published a proposed rule to designate
critical habitat for the Mariana fruit bat, Mariana crow, and Guam
Micronesian kingfisher (67 FR 63738). In that proposed rule, we
included a detailed summary of the previous Federal actions completed
prior to the publication of the proposal. The proposed critical habitat
consisted of approximately 24,803 ac (10,037 ha) in two units on the
island of Guam for the Mariana fruit bat and Guam Micronesian
kingfisher. For the Mariana crow, we proposed designating approximately
23,004 ac (9,309 ha) in two units on the island of Guam and
approximately 6,084 ac (2,462 ha) in one unit on the island of Rota in
the CNMI. We determined that designation of critical habitat would not
be prudent for the little Mariana fruit bat (Pteropus tokudae), Guam
broadbill (Myiagra freycineti), and Guam bridled white-eye (Zosterops
conspicillatus conspicillatus) because all three species likely are
extinct. Also, on February 23, 2004, we published a final rule
delisting the Guam broadbill due to extinction (69 FR 8116). In the
proposed rule, we included a detailed summary of the previous Federal
actions completed prior to publication of the proposal. We now provide
updated information on the actions we completed since the proposed
critical habitat designation.
On October 18, 2002, we mailed the proposed rule and a fact sheet
to all interested parties. The public comment period was open for 60
days until December 15, 2002. On October 23, 2002, we held a public
meeting on Guam at the Tamuning Community Center to provide information
and promote discussion about critical habitat designation. The meeting
was attended by 53 people, not including Service staff. On October 24,
2002, we also held a public meeting on Rota at the Rota Resort and
Country Club. The meeting was attended by 6 people, not including
Service staff. On November 6, 2002, we held a public hearing on Rota at
the Rota Resort and Country Club. The hearing was attended by 12
people, and 8 people gave oral testimony. On November 7, 2002, we held
a public hearing on Guam in Tumon at the Outrigger Guam Resort. This
hearing was attended by 50 people, and 20 people presented oral
testimony. On December 5, 2002, we published a notice in the Federal
Register and issued a press release announcing extension of the public
comment period and availability of the draft economic analysis for the
proposed designation of
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critical habitat for the Mariana fruit bat, Mariana crow, and Guam
Micronesian kingfisher (67 FR 72407). The Federal Register notice was
mailed to interested parties on December 6, 2002. The comment period
was open for an additional 30 days until January 6, 2003. On January
14, 2003, the Service met with a delegation from the Mariana Public
Lands Authority (CNMI) to discuss concerns about critical habitat. On
January 28, 2003, we published a notice to reopen the comment period
until February 18, 2003, due to hardships caused by Supertyphoon
Pongsona on Guam and Rota (68 FR 4159). The Federal Register notice was
mailed to all interested parties on the day of publication.
On May 30, 2003, the Government of Guam filed a motion to extend
the deadline for publication of the final rule to allow time to develop
an alternative to critical habitat designation on Guam. The Government
of Guam stated that they did not have adequate time to develop these
alternatives due to a recent change in administration and hardships
encountered as a result of Typhoon Chataan and Supertyphoon Pongsona.
On June 13, 2003, the Guam District Court extended the deadline for
publication ``indefinitely'' and set a status conference for October 7,
2003. On June 23, 2003, the Plaintiffs appealed the district court's
June 13, 2003, order to the 9th Circuit. On October 7, 2003, the Guam
District Court held a status conference in which the Government of Guam
requested a continuance of one month. On October 16, 2003, the Guam
District Court denied the request for further continuance and ruled
that it would take no further action while the case was on appeal. The
Plaintiffs withdrew their appeal, and on January 7, 2004, the U.S.
Court of Appeals for the Ninth Circuit dismissed the appeal and
returned the case to the Guam District Court.
In March and April 2004, a joint stipulation and order to finalize
the critical habitat for the Mariana fruit bat, Mariana crow, and Guam
Micronesian kingfisher were agreed to and approved by the Guam District
Court. The Government of Guam submitted their proposed alternative to
critical habitat to the Service on April 5, 2004. On June 2, 2004, we
published a notice in the Federal Register reopening the comment period
on the proposed rule until July 19, 2004, to allow interested parties
additional time to consider and comment on the Government of Guam's
proposal (69 FR 31073).
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as--(i)
the specific areas within the geographic area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and, (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species (16 U.S.C. 1532(5)(A)). ``Conservation,'' as defined by the
Act, means the use of all methods and procedures that are necessary to
bring an endangered or a threatened species to the point at which
listing under the Act is no longer necessary (16 U.S.C. 1532 (3)).
Critical habitat receives protection under section 7 of the Act
which requires Federal agencies, including the Service, to ensure that
actions they fund, authorize, or carry out are not likely to destroy or
adversely modify critical habitat. In our regulations at 50 CFR 402.2,
we define destruction or adverse modification as ``a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the survival and recovery of a listed species. Such
alterations include, but are not limited to: Alterations adversely
modifying any of those physical or biological features that were the
basis for determining the habitat to be critical.'' As a result of
Federal appeals court decisions ruling this regulation invalid, we are
currently reviewing the regulatory definition of adverse modification
in relation to the conservation of the species.
Section 7 also requires conferences on Federal actions that are
likely to result in the destruction or adverse modification of proposed
critical habitat. Aside from the added protection that may be provided
under section 7, the Act does not provide other forms of regulatory
protection to lands designated as critical habitat.
In order to qualify for a critical habitat designation, the area
must be ``essential to the conservation of the species.'' Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life cycle needs of the species (i.e., areas on which are
found the primary constituent elements, as defined at 50 CFR
424.12(b)). Section 3(5)(C) of the Act states that not all areas that
can be occupied by a species should be designated as critical habitat
unless the Secretary determines that all such areas are essential to
the conservation of the species. Our regulations (50 CFR 424.12(e))
also state that, ``[t]he Secretary shall designate as critical habitat
areas outside the geographical area presently occupied by a species
only when a designation limited to its present range would be
inadequate to ensure the conservation of the species.''
Section 4(b)(2) of the Act, as amended under the National Defense
Authorization Act (Public Law No: 108-136), requires that we take into
consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as
critical habitat. We may exclude areas from critical habitat
designation when the benefits of exclusion outweigh the benefits of
including the areas within critical habitat, provided the exclusion
will not result in extinction of the species.
Our Policy on Information Standards Under the Endangered Species
Act, published on July 1, 1994 (59 FR 34271), provides criteria,
establishes procedures, and provides guidance to ensure that decisions
made by the Service represent the best scientific and commercial data
available. It requires that our biologists, to the extent consistent
with the Act and with the use of the best scientific and commercial
data available, use primary and original sources of information as the
basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information could be the listing package for the species. Additional
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties,
scientific status surveys and studies, and biological assessments or
other unpublished materials.
Critical habitat designations do not signal that habitat outside
the designation is unimportant to the Mariana fruit bat, Guam
Micronesian kingfisher, and Mariana crow. Areas outside the critical
habitat designation will continue to be subject to conservation actions
that may be implemented under section 7(a)(1), and to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard and the
section 9 take prohibition, as determined on the basis of the best
available information at the time of the action. We specifically
anticipate that federally funded or assisted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some
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cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts if
new information available to these planning efforts calls for a
different outcome.
Methods
As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12), we used the best scientific information available to identify
areas that contain the physical and biological features that are
essential for the conservation of the Mariana fruit bat, Guam
Micronesian kingfisher, and Mariana crow. This information included:
Peer-reviewed scientific publications (e.g. Baker 1951; Jenkins 1983;
Wiles et al. 1995; National Research Council (NRC) 1997); published and
draft revised recovery plans (USFWS 1990a, 1990b, 2004a, in prep); the
final listing rule (49 FR 33881); unpublished reports by the Guam
Division of Aquatic and Wildlife Resources (GDAWR), CNMI Division of
Fish and Wildlife (DFW), and the Service (e.g., Wiles 1982a; Engbring
and Ramsey 1984; Morton 1996; Morton et al. 1999); aerial photographs
and satellite imagery of Guam and Rota; personal communications with
scientists and land managers familiar with the species and habitats;
and comments received during public comment periods and in response to
critical habitat outreach packages. Specific information we used from
these sources includes estimates of historic and current distribution,
abundance, and territory sizes for the three species, as well as data
on resource and habitat requirements. From recovery plans, we
considered the recovery objectives and the assessments of the habitat
necessary to meet these objectives, as well as life history
information.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to consider those physical and biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. Such
features are termed ``primary constituent elements'' and include, but
are not limited to: Space for individual and population growth and for
normal behavior; food, water, air, light, minerals and other
nutritional or physiological requirements; cover or shelter; sites for
nesting and rearing of offspring; and habitats that are protected from
disturbance and are representative of the historical, geographical and
ecological distributions of the species.
The primary constituent elements for the bat and both of the birds
can be found in limestone, secondary, ravine, swamp, agricultural, and
coastal forests on Guam and Rota that exhibit the biotic and structural
characteristics necessary for foraging, sheltering, roosting, nesting,
and rearing of young of the Mariana fruit bat, Guam Micronesian
kingfisher, and Mariana crow on Guam, and for these same life functions
of the crow on Rota. Guam and Rota experience a high frequency of
severe storms, and these regularly and significantly alter forest
structure (NRC 1997). Therefore, sufficient habitat area is necessary
to absorb the variable impacts of these natural disturbances and still
maintain the integrity of the primary constituent elements to support
fruit bat, kingfisher, and crow populations. Specific details of
primary constituent elements for each species are described below.
Mariana fruit bat: This species feeds on a variety of plant
material but is primarily frugivorous (Wiles and Fujita 1992).
Specifically, Mariana fruit bats forage on the fruit of at least 28
plant species, the flowers of 15 species, and the leaves of 2 plant
species (Wiles and Fujita 1992). Some of the plants used for foraging
include Artocarpus spp. (breadfruit), Carica papaya (papaya), Cycas
circinalis (fadang), Ficus spp. (figs), Pandanus tectorius (kafu),
Cocos nucifera (coconut), and Terminalia catappa (talisai). Many of
these plant species are found in a variety of forested habitats on Guam
including limestone, ravine, coastal, and secondary forests (Stone
1970; Raulerson and Rhinehart 1991).
During the day, Mariana fruit bats roost in groups or colonies and
occasionally alone (Wiles 1987; Pierson and Rainey 1992). These roost
sites are an important aspect of their biology because they are used
for sleeping, grooming, breeding, and intra-specific interactions
(USFWS 1990a). Published reports of roost sites on Guam indicate these
sites occur in mature limestone forest and are found within 328 ft (100
m) of clifflines that are 260 to 590 ft (80 to 180 m) tall (USFWS
1990a). On Guam, Mariana fruit bats prefer to roost in mature fig and
Mammea odorata (chopak) trees but will also roost in other tree species
such as Casuarina equisetifolia (gago), Macaranga thompsonii (pengua),
Guettarda speciosa (panao), and Neisosperma oppositifolia (fagot)
(Wheeler and Aguon 1978; Wiles 1981, 1982b). On other islands in the
Mariana archipelago, Mariana fruit bats have been observed in secondary
forest and gago groves (Glass and Taisacan 1988; Worthington and
Taisacan 1996; Worthington et al. 2001). Factors involved in roost site
selection are not clear, but data from Guam indicate that some sites
may be selected for their inaccessibility by humans and thus limited
human disturbance. Fruit bats will abandon roost sites if disturbed and
have been reported to move to new locations up to 6 mi (10 km) away
(USFWS 1990a).
In summary, the primary constituent elements required by the
Mariana fruit bat for the biological needs of foraging, sheltering,
roosting, and rearing of young are found in areas supporting limestone,
secondary, ravine, swamp, agricultural, and coastal forests composed of
native and introduced plant species. These forest types provide the
primary constituent elements of:
(1) Plant species used for foraging, such as breadfruit, papaya,
fadang, fig, kafu, coconut palm, and talisai; and
(2) Remote locations, often within 328 ft (100 m) of clifflines
that are 260 to 590 ft (80 to 180 m) tall, with limited exposure to
human disturbance and that contain mature fig, chopak, gago, pengua,
panao, fagot, and other tree species that are used for roosting and
reproductive activity.
Mariana crow: Historically, the distribution of Mariana crows among
habitats was similar on Guam and Rota. Crows were known to use
secondary, coastal, ravine, and agricultural forests, including coconut
plantations (Seale 1901; Stophlet 1946; Marshall 1949; Baker 1951;
Jenkins 1983), but all evidence indicates they were most abundant in
native limestone forests (Michael 1987; Morton et al. 1999). Mariana
crow nests on Guam have been found in 11 tree genera, all but one of
which are native, but most nests are located high in emergent fig or
Elaeocarpus joga (yoga) trees (Morton 1996; C. Aguon, GDAWR, unpubl.
data).
On Rota, crows use both mature and secondary limestone forests
(Morton et al. 1999), but not exclusively (M. Lusk and E. Taisacan
unpubl. data). Of 156 nest sites on Rota, 39 percent and 42 percent
were in mature and secondary limestone forest, respectively (Morton et
al. 1999). Between 1992 and 1994, 90 percent (n = 115) of observations
of perching crows on Rota were in native trees, primarily in middle to
low heights of the canopy (M. Lusk and E. Taisacan unpubl. data).
Mariana crows nested in 20 tree genera on Rota (Morton et al.
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1999). Of 161 nest trees found during 1996-99, 63 percent were of four
species: fagot, Eugenia reinwardtiana (a abang), Intsia bijuga (ifit),
and Premna obtusifolia (ahgao) (Morton et al. 1999). Individual nest
trees averaged approximately 7 in (16.9 cm) diameter at breast height
and 28.5 ft (8.7 m) high. Canopy cover over nest sites averaged 93
percent and was never less than 79 percent. Although 18 percent of the
forested area of Rota is tangantangan or some other species of
introduced tree (Falanruw et al. 1989), no crow nests have been found
in any nonnative tree species. Nests were located at least 950 ft (290
m) from the nearest road and 203 ft (62 m) from the nearest forest
edge. The distances from edges strongly suggest that nesting crows are
sensitive to disturbance by humans (Morton et al. 1999). No detailed
information is available on historical nest site selection by crows on
Guam, but the remaining crows on Guam nest and forage only in primary
or mature limestone forest.
On Rota, Morton et al. (1999) found that breeding crows in six
study areas averaged one pair per 50 ac (22 ha) of forested habitat,
and each territory was dominated by native forest. Pair densities
ranged from one per 91 ac (37 ha) in relatively fragmented forest, to
as high as one pair per 30 ac (12 ha) in mostly intact limestone forest
along a coastal terrace. Established pairs occupy territories
throughout the year but only aggressively defend them from July through
January.
In addition to habitat for breeding territories, Mariana crows also
require habitat for juvenile dispersal. When juvenile Mariana crows
leave the nest, they are typically tended by their parents until the
following breeding season, a period that ranges from 3 to 18 months
(Morton et al. 1999). After this parental attendance period, these
juveniles enter the non-breeding population of Mariana crows until they
are recruited into the adult population at approximately three years of
age (Morton et al. 1999). Little research has been done on the non-
breeding population of crows and their habitat needs, but the
territoriality of breeding adults and the time required before
juveniles enter the breeding population indicate that foraging habitat
outside established territories is needed to maintain juvenile Mariana
crows.
Mariana crows may forage at any height in the forest or on the
ground (Jenkins 1983; Tomback 1986). These crows forage in at least 18
tree genera, most of which are native (Jenkins 1983; Tomback 1986; C.
Aguon unpubl. data). Mariana crows are omnivorous and have been
observed feeding on a variety of native and nonnative invertebrates,
reptiles, young rats, and birds' eggs, as well as on the foliage, buds,
fruits, and seeds of at least 26 plant species (Jenkins 1983; Tomback
1986; Michael 1987; C. Aguon unpubl. data).
In summary, the primary constituent elements required by the
Mariana crow for the biological needs of foraging, sheltering,
roosting, nesting, and rearing of young are found in areas that support
limestone, secondary, ravine, swamp, agricultural, and coastal forests
composed of native and introduced plant species. These forest types
provide the primary constituent elements of:
(1) Emergent and subcanopy trees with dense cover for breeding such
as fagot, pengua, ifit, ahgao, aabang, fig, yoga, and Tristiropsis
obtusangula (faniok);
(2) Sufficient area of predominantly native limestone forest to
allow nesting at least 950 ft (290 m) from the nearest road and 203 ft
(62 m) from the nearest forest edge and to support Mariana crow
breeding territories (approximately 30 to 91 ac (12 to 37 ha)) and
foraging areas for nonbreeding juvenile crows; and
(3) Standing dead trees and plant species for foraging, such as
Aglaia mariannensis (maypunayo), breadfruit, coconut palm, fagot,
Hibiscus tiliaceus (pago), ifit, tangantangan, Ochrosia mariannensis
(langiti), kafu, ahgao, fig, and yoga.
Guam Micronesian kingfisher: Jenkins (1983) recorded the Guam
Micronesian kingfisher nesting and foraging in northern Guam in mature
limestone forest, secondary forests, and coastal forests dominated by
coconut trees. Kingfishers also were found historically in southern
Guam in ravine and coastal forests (Jenkins 1983). Few data exist about
specific kingfisher nest sites on Guam, but in one study, nest sites in
northern Guam were found in native limestone forest, and the location
of these sites within the forest was correlated with closed canopy
cover and dense understory vegetation (Marshall 1989). Recent studies
of the Pohnpei Micronesian kingfisher (Halcyon cinnamomina
reichenbachii) have documented that this subspecies also occurs in a
wide range of forest types; however, territories of all 14 breeding
pairs studied on Pohnpei included at least several hectares of mature
native rainforest (D. Kesler, pers. comm., 2002).
Micronesian kingfishers are obligate cavity nesters and require
specific substrates for excavating nest cavities. On Guam, Marshall
(1989) found that kingfishers excavated nest cavities in relatively
soft, decaying wood in standing dead trees, including faniok, Pisonia
grandis (umumu), breadfruit, fig, and coconut palm, and in the mud
nests of Nasutitermes spp. termites and the root masses of epiphytic
ferns. All nest cavities found in trees were in large-diameter trees
(average diameter at breast height (dbh) 16.8 5.0 in (42.7
12.7 cm)), and these trees contained an average of 19
excavations, most of which were incomplete (Marshall 1989). Multiple
excavations in suitable nest trees suggest both the importance of these
trees as nest sites and the importance of excavation in the
kingfishers' courtship and nesting behavior (Jenkins 1983). The links
between courtship behavior, excavation activity, and nest substrate
requirements have been well documented in the captive population of
this species as well (Bahner et al. 1998; S. Derrickson, Conservation
Research Center, in litt. 2002). Marshall (1989) concluded that the
population density of kingfishers on Guam may be limited by the
availability of nest sites.
Guam Micronesian kingfishers maintain year-round territories, which
they aggressively defend (Jenkins 1983). Nothing is known about the
territory size requirements of Micronesian kingfishers on Guam, but
research on the Pohnpei subspecies indicates that territory sizes in
upland forest are approximately 25 ac (10 ha) (D. Kesler, pers. comm.,
2001).
Guam Micronesian kingfishers feed both on invertebrates and small
vertebrates, including insects, segmented worms, hermit crabs, skinks,
geckos, and possibly other small vertebrates (Marshall 1949; Baker
1951; Jenkins 1983). This species typically forages by perching
motionless on exposed perches and swooping down to capture prey on the
ground (Jenkins 1983). Guam kingfishers also will capture prey from
foliage and have been observed gleaning insects from tree bark (Maben
1982). Marshall (1989) observed no kingfishers foraging in dead trees.
In summary, the primary constituent elements required for the Guam
Micronesian kingfisher for the biological needs of foraging,
sheltering, roosting, nesting, and rearing of young are found in areas
that support limestone, secondary, ravine, swamp, agricultural, and
coastal forests containing native and introduced plant species. These
forest types include the primary constituent elements of:
(1) Closed canopy and well-developed understory vegetation; large
(minimum of approximately 17 in (43 cm) dbh), standing dead trees
(especially faniok, umumu, breadfruit, fig, and coconut palm); mud
nests of Nasutitermes spp.
[[Page 62949]]
termites; and root masses of epiphytic ferns for breeding;
(2) Sufficiently diverse structure to provide exposed perches and
ground surfaces, leaf litter, and other substrates that support a wide
range of vertebrate and invertebrate prey species for foraging
kingfishers; and
(3) Sufficient overall breeding and foraging area to support
kingfisher territories of approximately 25 ac (10 ha) each.
Criteria Used To Identify Critical Habitat
We used several criteria to identify and select lands for
designation as critical habitat. For the Mariana fruit bat (Guam only)
and Mariana crow, we began with all areas that are currently occupied.
The Guam subspecies of Micronesian kingfisher is currently extirpated
in the wild, so no habitat currently is occupied. We then examined
unoccupied forested lands on Guam containing the primary constituent
elements that are needed for the conservation of each species (see
explanation below). We identified which unoccupied areas on Guam were
needed for the conservation of each species using recovery habitat
identified in recovery plans and information on the historical
distribution of each species. Within the area of historical
distribution, we gave preference to lands that provide the largest
tracts of native forest and were more recently occupied by each
species. We determined the boundaries of critical habitat units by the
extent of suitable forest containing the primary constituent elements.
The location of these suitable forests in many areas coincided with the
boundaries of military reservations, National Wildlife Refuges, and
conservation areas on Guam. We also included some small non-forested
areas interspersed with forested areas because of their potential for
reforestation. We did not include urban lands and agricultural fields
because they generally do not contain the primary constituent elements
and restoration to native forest is extremely unlikely.
On Guam, we identified two units for each species using the
guidelines provided by the Mariana fruit bat recovery plan (1990a),
Guam forest bird recovery plan (1990b), and recommendations by our
Mariana crow recovery team for the draft revised recovery plan (USFWS
in prep). We also used the recommendation of the recovery team to
identify one unit for the Mariana crow on Rota (USFWS in prep). For the
conservation of the Mariana crow, current recovery recommendations and
the draft revised recovery plan (USFWS in prep) call for established
populations in northern Guam, in southern Guam, and on Rota.
Establishing two geographically separated populations on Guam is
important to decrease the risk of extirpation of the species as a
result of localized, stochastic events, such as typhoons and disease
outbreaks (Dobson and May 1986; NRC 1997). A long-accepted view
developed from ecological research is that the existence of more than
one population increases the long-term likelihood of species'
persistence (Raup 1991; Meffe and Carroll 1997).
Within the designated critical habitat unit boundaries, only lands
containing one or more of the primary constituent elements are
designated as critical habitat. Existing features and structures within
the boundaries of the mapped units, such as buildings, roads,
aqueducts, antennas, water tanks, agricultural fields, paved areas,
lawns, and other urban landscaped areas do not contain the primary
constituent elements and therefore are not designated as critical
habitat.
Section 3(5)(A)(ii) of the Act provides that areas outside the
geographical area currently occupied by the species may meet the
definition of critical habitat upon determination that they are
essential for conservation of the species. We included unoccupied
habitat in the designated critical habitat for the Guam Micronesian
kingfisher and Mariana crow on Guam because, as explained below, the
currently occupied habitat alone is not sufficient to provide for the
conservation of the species.
Mariana fruit bat: Although the current population of Mariana fruit
bats on Guam is small and most bats roost in a limited area, the
foraging behavior and diverse diet of the fruit bats cause them to use
most of the island for foraging, as documented by Wiles et al. (1995).
Thus, all of the designated critical habitat for this species is used
for foraging and/or roosting and is considered occupied.
Mariana crow: The critical habitat unit for the Mariana crow on
Rota reflects the goal of establishing and maintaining a population of
at least 75 territorial breeding pairs on Rota and our recovery team's
estimation of areas necessary to meet this goal (USFWS in prep). The
lands designated as critical habitat for the Mariana crow on Rota
support at least 63 known breeding pairs and includes areas that are
believed to support an additional 25 pairs (Morton et al. 1999). We
included all areas identified by our recovery team as high priority,
and incorporated lower priority areas known or believed to harbor crows
to provide additional habitat to support the non-breeding crow
population and create greater connectivity between high-priority areas.
On Guam, the distribution and abundance of Mariana crows have
declined precipitously over the last three decades (USFWS in prep.).
Currently, the population consists of 10 birds occupying approximately
1,920 ac (777 ha) located in the munitions storage area of Andersen Air
Force Base in northern Guam. This current distribution represents an 85
percent reduction in range from the estimated distribution in 1994
(12,633 ac; 5,112 ha) reported by Wiles et al. (1995).
Mariana crows are territorial; each pair defends an area of a size
determined by forest type and structure (Morton et al. 1999). The
maximum density or carrying capacity of crow pairs in a particular area
depends on both habitat quality (for foraging and breeding) and the
spatial arrangement of territories. On Rota, Mariana crow territories
ranged from 30 to 91 ac (12 to 37 ha) in size with an average of one
pair per 54 ac (22 ha) (Morton et al. 1999). The area currently
occupied on Guam (1,920 ac; 777 ha) can support only about 35 pairs,
which is fewer than the 75 pairs recommended by our recovery team and
therefore is too small to support a Mariana crow population large
enough to be considered safe from extinction.
Because of the territorial nature of the Mariana crow, its small
total population size, limited range, vulnerability to environmental
threats, and recovery goals drafted for the species, inclusion of
certain currently unoccupied areas on Guam that contain the primary
constituent elements is essential to the conservation of the species.
Recovery to the point where listing is no longer necessary will require
restoration of Mariana crows on Guam through natural dispersal,
translocation, and/or release of captive birds in areas that were
formerly inhabited but that are not currently occupied. Unoccupied
areas adjacent to currently occupied areas are needed to allow
expansion of the existing population and help alleviate threats
associated with small population size. Specifically, the 10 crows
currently found on Andersen Air Force Base in northern Guam do not
constitute a viable population of this species. These animals are
unlikely to increase their numbers to a self-sustaining level in the
area they presently occupy, even with human intervention. For this
population to persist over the long term, it must
[[Page 62950]]
expand onto adjacent lands that now are unoccupied.
Guam Micronesian kingfisher: The last wild kingfisher on Guam was
seen in 1988, and this subspecies is believed extirpated from the wild
(Wiles et al. 2003). The total population now consists of 63 birds in
11 captive breeding institutions in the mainland United States and by
the Guam Division of Aquatic and Wildlife Resources (Bahner, in litt.
2003). Because the Guam Micronesian kingfisher does not exist in the
wild and all suitable habitat presently is unoccupied, inclusion of
unoccupied areas containing the primary constituent elements is
essential to the conservation of this species. Recovery to the point
where the protection afforded by listing is no longer necessary will
require restoration of the Guam Micronesian kingfisher through release
of captive birds and subsequent natural dispersal into areas of Guam
that formerly were inhabited.
Critical Habitat Designation
Lands designated as critical habitat for the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher all occur in one unit on
Guam. Lands designated as critical habitat for the Mariana crow occur
in one unit on Rota. The critical habitat units (and military,
Government of Guam, and private lands on Guam excluded under sections
4(a)(3), and 4(b)(2) of the ESA, as amended by Section 318 of the
fiscal year 2004 National Defense Authorization Act) provide the full
range of primary constituent elements needed by these three species,
including a variety of undeveloped, forested areas that are used for
foraging, roosting, shelter, nesting, and raising offspring. Designated
critical habitat includes land under Federal, Commonwealth, and private
ownership, with Federal lands being managed by the Department of the
Interior. The approximate area and land ownership within each unit are
shown in Table 1. Table 2 provides a summary of the total area
identified as essential to the long-term conservation of the three
species, the total area excluded from critical habitat designation, and
the designated critical habitat on Guam and Rota.
Table 1.--Approximate Area (Acres, Hectares) of Designated Critical Habitat Areas by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal gov't. Local gov't.
Species Unit \a\ \b\ Private Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mariana Fruit Bat.............................. Mariana Fruit Bat Unit: Guam........... 376 ac 0 ac 0 ac 376 ac
(152 ha) (0 ha) (0 ha) (152 ha)
Total (Mariana fruit Bat).............. 376 ac 0 ac 0 ac 376 ac
(152 ha) (0 ha) (0 ha) (152 ha)
Mariana Crow................................... Unit A: Guam........................... 376 ac 0 ac 0 ac 376 ac
(152 ha) (0 ha) (0 ha) (152 ha)
Unit B: Rota--Subunit 1................ 0 ac 5,221 ac 447 ac 5,668 ac
(0 ha) (2,113 ha) (181 ha) (2,294 ha)
Unit B: Rota--Subunit 2................ 0 ac 349 ac 16 ac 365 ac
(0 ha) (141 ha) (7 ha) (148 ha)
Total (Mariana Crow)................... 376 ac 5,570 ac 463 ac 6,409 ac
(152 ha) (2,254 ha) (188 ha) (2,594 ha)
Guam Micronesian Kingfisher.................... Guam Micronesian Kingfisher Unit: Guam. 376 ac 0 ac 0 ac 376 ac
(152 ha) (0 ha) (0 ha) (152 ha)
Total (Guam Micronesian Kingfisher).... 376 ac 0 ac 0 ac 376 ac
(152 ha) (0 ha) (0 ha) (152 ha)
------------------------------------------------
Total for all species (counting identical or overlapping units only once) 376 ac 5,570 ac 463 ac 6,409 ac
(152 ha) (2,254 ha) (188 ha) (2,594 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Federal lands are under the ownership or jurisdiction of the U.S. Fish and Wildlife Service.
\b\ Local lands are owned by and managed for the people of the Territory of Guam and the Commonwealth of the Northern Mariana Islands by the Chamorro
Land Trust Commission and Marianas Public Land Authority, respectively.
Table 2.--Approximate Areas in Acres (ac) and Hectares (ha) of Essential
Habitat, Excluded Areas, and Designated Critical Habitat
------------------------------------------------------------------------
Guam Rota
------------------------------------------------------------------------
Area considered essential... 24,121 ac (9,761 ha) 6,033 ac (2,442 ha).
Area excluded under sections 23,745 ac (9,609 ha) 0 ac (0 ha).
4(a)(3) and/or 4(b)(2) of
the ESA, as amended by
Section 318 of the fiscal
year 2004 National Defense
Authorization Act (Andersen
Air Force Base;
COMNAVMARIANAS Ordnance
Annex and Communications
Annex; Government of Guam
lands; and private lands on
Guam).
Final critical habitat...... 376 ac (152 ha)..... 6,033 ac (2,442 ha).
------------------------------------------------------------------------
All of the designated critical habitat on Guam currently is
occupied by the Mariana fruit bat. None of the critical habitat on Guam
is currently occupied by the Mariana crow or Guam Micronesian
kingfisher, but it was occupied historically. On Rota, the designated
critical habitat is occupied by the Mariana crow.
Mariana Fruit Bat
This unit consists of approximately 376 ac (152 ha) of land in the
fee simple portion of the Guam National Wildlife Refuge. The vegetation
in this unit consists of coastal, limestone, and secondary forests
composed of native and introduced plant species and contains the full
range of primary constituent elements needed for the conservation of
the Mariana fruit bat.
[[Page 62951]]
This area is important because it contains areas used for foraging by
the only known Mariana fruit bat colony on Guam. This area also
contains roosting and foraging sites used by bats since 1981 (see Wiles
et al. 1995 for details). This unit also encompasses essential
conservation areas identified in the Mariana fruit bat recovery plan
(USFWS 1990a).
Excluded from designation (see ``Exclusions from Critical
Habitat'') are 10,838 ac (4,386 ha) of Air Force lands, 7,977 ac (3,228
ha) of Navy lands, 2,989 ac (1,210 ha) of Government of Guam lands, and
1,941 ac (785 ha) of private lands in northern and southern Guam that
were proposed as critical habitat in the October 15, 2002, proposed
rule (67 FR 63738), leaving a final designation of 376 ac (816 ha).
Although Air Force, Navy, Government of Guam, and private lands are
excluded from final critical habitat designation, they still contribute
to the conservation of the Mariana fruit bat.
Mariana Crow
Unit A: Guam
Unit A consists of approximately 376 ac (152 ha) of land in the fee
simple portion of the Guam National Wildlife Refuge. Unit A includes
limestone, secondary, and coastal forests composed of native and
nonnative plants and contains the full range of primary constituent
elements needed for long-term conservation of the Mariana crow on Guam.
This area includes lands in the 1994 historical distribution of Mariana
crows in northern Guam (Wiles et al. 1995) and areas that contained
crows in northern Guam in 1981 (Engbring and Ramsey 1984). Unit A was
also identified by our Mariana crow recovery team as important recovery
habitat in the draft revised Mariana crow recovery plan (USFWS in
prep.).
Excluded from designation (see ``Exclusions from Critical
Habitat'') are 10,838 ac (4,386 ha) of Air Force lands, 7,977 ac (3,228
ha) of Navy lands, 2,768 ac (1,121 ha) of Government of Guam lands, and
1,941 ac (785 ha) of private lands in northern and southern Guam that
were proposed as critical habitat in the October 15, 2002, proposed
rule (67 FR 63738), leaving a final designation of 376 ac (152 ha).
Although Air Force, Navy, Government of Guam, and private lands are
excluded from final critical habitat designation, they still contribute
to the conservation of the Mariana crow.
Unit B: Rota
Unit B consists of approximately 6,033 ac (2,442 ha) of forested
land encompassing much of the undeveloped areas on Rota. This area
contains the Afatung Wildlife Management Area, I Chenchon Bird
Sanctuary, and forested areas on public and private lands around the
Sabana and Sinapalu plateaus. Unit B is composed of limestone,
secondary, agricultural, coastal, and ravine forests consisting of
native and nonnative plants and contains the full range of primary
constituent elements needed for long-term conservation of the Mariana
crow on Rota. This area includes the known breeding territories of at
least 63 Mariana crow pairs and possibly those of an additional 25
pairs (Morton et al. 1999). This area also includes the areas on Rota
identified by our Mariana crow recovery team as important conservation
areas in the draft revised Mariana crow recovery plan (USFWS in prep.).
The critical habitat designated in Unit B consists of five
sections. The first section includes the Afatung Wildlife Management
Area in the Palii region and the forested areas in the Finata, Alaguan,
and I Koridot regions. The second section includes the I Chenchon Bird
Sanctuary and the forested areas in the I Chiugai and As Dudo regions
of eastern Rota. The third section consists of much of the forested
areas in the As Matmos, Mochong, Lalayak, Pekngasu, and I Batko
regions, as well as the forested areas adjacent to the Rota Resort. The
fourth section includes much of the forested areas in the Mananana,
Uyulan Hulo, Sailgai Hulo, Gayauga, Lempanai, and Lupok regions. The
fifth section includes much of the forested areas, as well as some of
the grassland areas, in the Talakhaya and Gaonan regions of southern
Rota. None of Unit B was excluded.
Guam Micronesian Kingfisher
Designated critical habitat for the Guam Micronesian kingfisher
consists of approximately 376 ac (152 ha) of land in the fee simple
portion of the Guam National Wildlife Refuge. The vegetation in this
designated unit consists of coastal, limestone, and secondary forests
composed of native and introduced species that contain the full range
of primary constituent elements required for the long-term conservation
of the Guam Micronesian kingfisher in northern Guam. This unit includes
forested areas along the northwestern coasts of the island that were
occupied by Guam Micronesian kingfishers in the 1970s and early 1980s
(Drahos 1977; Maben and Aguon 1980, 1981; Engbring and Ramsey 1984).
This unit also encompasses essential conservation areas identified in
the forest bird recovery plan for northern Guam (USFWS 1990b).
Excluded from designation (see ``Exclusions from Critical
Habitat'') are 10,838 ac (4,386 ha) of Air Force lands, 7,977 ac (3,228
ha) of Navy lands, 2,989 ac (1,210 ha) of Government of Guam lands, and
1,941 ac (785 ha) of private lands in northern and southern Guam that
were proposed as critical habitat in the October 15, 2002, proposed
rule (67 FR 63738), leaving a final designation of 376 ac (152 ha).
Although Air Force, Navy, Government of Guam, and private lands are
excluded from final critical habitat designation, they still contribute
to the conservation of the Guam Micronesian kingfisher.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.2, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to: Alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' We are currently reviewing the regulatory definition of
adverse modification in relation to the conservation of the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR Part 402. Section 7(a)(4) of the Act requires
Federal agencies to confer with us on any action that is likely to
jeopardize the continued existence of a proposed species or result in
destruction or adverse modification of proposed critical habitat.
Conference reports provide conservation recommendations to assist the
agency in eliminating conflicts that may be caused by the proposed
action. The conservation recommendations in a conference report are
advisory. If a species is listed or critical habitat is designated,
section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed
[[Page 62952]]
species or its critical habitat, the responsible Federal agency (action
agency) must enter into consultation with us. Through this
consultation, the action agency ensures that the permitted actions do
not destroy or adversely modify critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated and the Federal agency has retained
discretionary involvement or control over the action or such
discretionary involvement or control is authorized by law.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
an opinion that is prepared according to 50 CFR 402.14, as if critical
habitat were designated. We may adopt the formal conference report as
the biological opinion when the critical habitat is designated, if no
substantial new information or changes in the action alter the content
of the opinion (see 50 CFR 402.10(d)).
Activities on Federal lands that may affect these species or their
critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit from a Federal agency, such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or
some other Federal action, including funding (e.g., Federal Highway
Administration or Federal Emergency Management Agency funding), will
also continue to be subject to the section 7 consultation process.
Federal actions not affecting listed species or critical habitat and
actions on non-Federal and private lands that are not federally funded,
authorized, or permitted do not require section 7 consultation.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat include those that appreciably reduce the value of critical
habitat to the Mariana fruit bat, Mariana crow, and Guam Micronesian
kingfisher. We note that such activities may also jeopardize the
continued existence of the species.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery. Actions likely to ``destroy or adversely modify'' critical
habitat are those that would appreciably reduce the value of critical
habitat to the listed species.
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would often result in jeopardy to the species
concerned when the area of the proposed action is occupied by the
species concerned.
Federal agencies already consult with us on activities in areas
currently occupied by the species to ensure that their actions do not
jeopardize the continued existence of the species. These actions
include, but are not limited to:
(1) Actions that would result in removing, thinning, or destroying
Mariana fruit bat, Guam Micronesian kingfisher, or Mariana crow forest
habitat by burning, mechanical, chemical, or other means (e.g.,
woodcutting, grading, overgrazing, construction, road building, mining,
herbicide application, etc.). These activities could eliminate habitat
necessary for the growth and reproduction of these species.
(2) Actions that would result in appreciably decreasing habitat
value or quality through introduction or promotion of potential nest
predators, disease or disease vectors, vertebrate or invertebrate food
competitors, invasive plant species, forest fragmentation, overgrazing,
augmentation of feral ungulate populations, water diversion or
impoundment, groundwater pumping or other activities that alter water
quality or quantity to an extent that affects vegetation structure, or
activities that increase the risk of fire. These actions could
eliminate or reduce the habitat necessary for the growth and
reproduction of these species.
We consider the Mariana fruit bat critical habitat unit to be
occupied by the species because it is utilized by foraging and roosting
Mariana fruit bats. We also consider the Mariana crow critical habitat
Unit B on Rota to be occupied by the species because it is utilized by
nesting and foraging Mariana crows. Federal agencies already consult
with us on activities in areas currently occupied by the species or if
the species may be affected by the action to ensure that their actions
do not jeopardize the continued existence of the species.
If you have questions regarding whether specific activities will
likely constitute destruction or adverse modification of critical
habitat, contact the Field Supervisor, Pacific Islands Fish and
Wildlife Office (see ADDRESSES section). Requests for copies of the
regulations on listed plants and animals, and inquiries about
prohibitions and permits, may be addressed to the U.S. Fish and
Wildlife Service, Division of Endangered Species, 911 N.E. 11th Ave.,
Portland, OR 97232-4181 (telephone 503/231-2063; facsimile 503/231-
6243).
Exclusions From Critical Habitat
Guam Lands Under U.S. Air Force Jurisdiction
Section 4(a)(3) of the Act, as amended by Section 318 of the fiscal
year 2004 National Defense Authorization Act (Public Law No: 108-136),
states that the Secretary of the Interior shall not designate critical
habitat on Department of Defense lands that are subject to an INRMP
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines the plan provides
[[Page 62953]]
a benefit to the species. Department of Defense lands may be excluded
from critical habitat under section 4(a)(3) if they are subject to an
operative INRMP which provides a benefit by addressing the maintenance
or improvement of primary constituent elements important to the Mariana
fruit bat, Mariana crow, and Guam Micronesian kingfisher.
As previously explained, the primary cause of the decline and
disappearance of native bird and bat species on Guam has been predation
by nonnative species, especially the brown treesnake (Savidge 1986,
1987; USFWS 1990a, 1990b, 2004a, in prep; Wiles et al. 1995). Habitat
loss and degradation by a combination of development and suppression of
forest growth by introduced ungulates also have contributed to the
decline of native species in the Mariana archipelago. In addition to
these other threats, hunting has had a significant impact on the
Mariana fruit bat.
The management actions needed to address these threats and ensure
the survival and long-term conservation of the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher are described in the
recovery plans for these three species and other documents (USFWS
1990a, 1990b, 2004a, in prep; Wiles et al. 1995; NRC 1997). Some of
these management actions include: (1) Control brown treesnakes and
other nonnative predators, and conduct research to develop methods for
control over large areas and eradication; (2) conduct management
activities, e.g., feral ungulate control and reforestation, which are
necessary to protect and enhance existing essential habitat on Guam and
Rota; (3) protect fruit bats from illegal hunting; and (4) reintroduce
the Mariana crow and Guam Micronesian kingfisher to northern and
southern Guam and establish self-sustaining populations.
The Air Force completed a final INRMP for Andersen Air Force Base
in February 2002 which was updated in December 2003 (Air Force 2003).
This updated plan covers all Air Force lands included in Andersen Air
Force Base in northern Guam. The long-term natural resource management
goal of Andersen Air Force Base is to: ``[m]anage, conserve, protect,
and enhance Andersen Air Force Base's natural and cultural resources
and environmental quality in the best national interest, compatible
with military operations and in accordance with the principles of
multiple use and sustained yield (for harvestable resources). All
natural resources management programs will be undertaken with a special
emphasis on the protection and recovery of endangered and threatened
species, and to perpetuate Guam's native biodiversity.''
To achieve this goal, the INRMP for Air Force lands includes
several projects that will maintain or benefit the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher. These projects include:
development and implementation of a Mariana fruit bat colony protection
plan, area-wide brown treesnake trapping, construction of a cat barrier
around Area 50, removal of feral ungulates from the Munitions Storage
Area and Area 50, construction of ungulate exclosures in areas of high
ecological value and removal of ungulates from these exclosures,
monitoring of habitat regeneration in these exclosures, base-wide
``habitat biodiversity monitoring,'' and public education on
conservation issues. All of these actions have been developed through
coordination with the Service.
In addition, the Air Force has authorized the Guam Division of
Aquatic and Wildlife Resources to release and monitor captive-reared
Guam rails (Gallirallus owstoni; formerly extirpated) and translocate
captive-reared Mariana crows on Andersen Air Force Base (Vice et al.
2001; Radway 2003; USFWS in prep). In the past four years, 17 Mariana
crows and 62 Guam rails have been released on Guam, all on Air Force
lands (D. Vice, pers. comm.; USFWS in prep). In their INRMP, the Air
Force also affirms its support for the eventual release of captive-bred
Guam Micronesian kingfishers on their lands (Air Force 2003).
The activities described above result in the following benefits to
the Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher:
(1) Significant reduction of treesnakes in the area currently occupied
by Mariana crows on Guam, (2) progress toward more efficient methods
for controlling brown treesnakes, (3) habitat enhancement for all three
species, (4) potential increase in nest success for Mariana crows, (5)
augmentation of the crow population on Guam, (6) increased knowledge of
the crow's biology through monitoring, and (7) physical protection of
the Mariana fruit bat colony on Andersen Air Force Base. The
comprehensive list of ongoing and proposed management activities
detailed in the INRMP (Air Force 2003) address management actions
(predator control, protection and enhancement of essential habitat,
protection of fruit bats from illegal hunting, and reintroduction and
establishment of self-sustaining populations of these three species)
that provide a significant conservation benefit to the species. Without
these management actions on Andersen Air Force Base, the Mariana crow
and Mariana fruit bat likely would be extirpated from Guam, and no
suitable areas for reintroduction of the Guam Micronesian kingfisher
would exist.
In view of the benefit to the bat and birds of the foregoing
management and stewardship actions detailed in the updated Andersen Air
Force Base INRMP, the area is not included as critical habitat under
Section 4(a)(3) of the Act, as amended by Section 318 of the fiscal
year 2004 National Defense Authorization Act. Although these areas are
not included from the final critical habitat designation, they remain
essential for the conservation of the Mariana fruit bat, Mariana crow,
and Guam Micronesian kingfisher, and management for the conservation of
these species on Andersen Air Force Base is necessary to meet the
overall recovery goals for these species.
Analysis of Impacts Under ESA Section 4(b)(2)
Section 4(b)(2) of the Act, as amended by subsection (b) of Section
318 of the fiscal year 2004 National Defense Authorization Act (Public
Law No: 108-136), requires us to designate critical habitat on the
basis of the best scientific and commercial information available, and
to consider the economic, national security, and other relevant impacts
of designating a particular area as critical habitat. We may exclude
areas from critical habitat upon a determination that the benefits of
such exclusions outweigh the benefits of specifying such areas as
critical habitat. We cannot exclude such areas from critical habitat
when such exclusion will result in the extinction of the species
concerned.
Economic Impacts
Following the publication of the proposed critical habitat
designation on October 15, 2002, a draft economic analysis was prepared
to evaluate the direct and indirect economic impact associated with the
proposed designation, in accordance with recent court decisions, such
as N.M. Cattlegrowers Ass'n v. U.S. Fish and Wildlife Serv., 248 F.3d
1277 (10th Cir. 2001). The draft analysis was made available for review
on December 5, 2002 (67 FR 72407). We accepted comments on the draft
analysis until the comment period closed on January 6, 2003. We
reopened the comment period on January 28, 2003, and accepted
additional comments on the draft analysis until February 18, 2003 (68
FR 4159).
Our draft economic analysis evaluated the direct and indirect
economic
[[Page 62954]]
impacts associated with our proposed critical habitat designation for
the Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher on
the island of Guam and the Mariana crow on the island of Rota over the
next ten years. Direct impacts are those related to consultations under
section 7 of the Act. They include the cost of completing the section 7
consultation process and potential project modifications resulting from
the consultation. Indirect impacts are secondary costs and benefits not
directly related to compliance with the Act. Examples of indirect
impacts include potential effects to property values and the cost of
investigating the requirements resulting from a critical habitat
designation.
The categories of direct and indirect costs considered in the
analysis included the costs associated with: (1) Conducting section 7
consultations; (2) modifications to projects, activities, or land uses
resulting from section 7 consultations; (3) uncertainty and public
perceptions resulting from the designation of critical habitat,
including potential effects on property values; and (4) the potential
offsetting beneficial costs associated with critical habitat. The most
likely economic effects of critical habitat designation are on
activities funded, authorized, or carried out by a Federal agency
(i.e., direct costs).
Following the close of the comment period on the proposed rule and
draft economic analysis, an addendum was completed that incorporated
public comments on the draft analysis and made other changes as
necessary. The draft economic analysis and addendum address the impact
of the proposed and final critical habitat designation, respectively,
that may be attributable coextensively to the listing of the species.
Because of uncertainty about the benefits and economic costs resulting
solely from critical habitat designations, it is reasonable to estimate
the economic impacts of a designation utilizing this single baseline.
Together, the draft economic analysis and the addendum constitute
our final economic analysis. The final economic analysis estimates
that, over the next 10 years, the designation (coextensive with the
listing) may result in direct economic impacts from implementation of
section 7 of approximately $1.227 million present value cost. This
increase of approximately $173,630 from the draft economic analysis'
estimated potential direct economic effects from implementation of
section 7 is due primarily to the evaluation of new projects identified
during the public comment periods. This estimate also includes Air
Force, Navy, Government of Guam, and private lands that were proposed
as critical habitat but have been excluded from the final designation.
Therefore, the direct cost of designating critical habitat for the
Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher is
likely lower than this estimate. We have excluded much of these lands
so the direct economic impacts of the final designation is likely to be
substantially lower than this estimate. With approximately 90 percent
reduction in acreage and only refuge and Rota lands remaining, the cost
may be closer to $463,300.
While our final economic analysis includes an evaluation of
potential indirect costs associated with the designation of critical
habitat for Mariana fruit bat, Mariana crow, and Guam Micronesian
kingfisher on Guam and the Mariana crow on Rota, there is considerable
uncertainty whether any or all of these indirect impacts will occur, as
they depend upon actions and decisions by entities other than the
Service under circumstances for which there is limited or no history
that can be used to determine the probability of different outcomes.
The costs are of necessity speculative and may overestimate the
impacts. However, without having more specific information, a
conservative approach (maximum economic impact) was used.
The final economic analysis discusses economic benefits in
qualitative terms rather than providing dollar estimates because of the
lack of information available to quantify the economic benefits of
endangered species preservation and ecosystem improvements. The
economic analysis identifies existence value, use value, recreational
benefits, overall ecosystem health, and ecosystem preservation values
as potential benefits of critical habitat designation. However, as
stated above, economic benefits could not be estimated quantitatively
due to a lack of information.
A more detailed discussion of the economic impacts is contained in
the draft economic analysis and the addendum. Both documents are
available for inspection at the Pacific Islands Fish and Wildlife
Office and are available by request (see ADDRESSES section).
No critical habitat units in the proposed rule were excluded or
modified due to economic impacts because the expected cost of the
designation is not expected to be significant. The likely direct cost
of designating critical habitat on Guam for the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher is estimated to be
$162,582 per year over the next ten years. This estimate, however,
includes areas that were proposed as critical habitat but have been
excluded from the final designation on Guam. Therefore, the anticipated
direct costs of designating critical habitat on Guam for these three
species are likely lower. The likely direct cost of designating
critical habitat on Rota for the Mariana crow is estimated to be
$12,142 per year over the next ten years.
National Security and Other Impacts
The following analysis describes the likely positive and negative
impacts of a critical habitat designation on Navy lands, Government of
Guam lands, and private lands on Guam compared to the likely positive
and negative impacts of a critical habitat exclusion on those lands.
The Service focused on the following issues: to what extent a critical
habitat designation would confer conservation, regulatory, and
educational benefits, and to what extent an exclusion of critical
habitat would reduce or eliminate negative impacts to the Navy's
military mission and stewardship program under their COMNAVMARIANAS
INRMP and the Government of Guam's stewardship program under their
proposed alternative to critical habitat designation.
Lands Under U.S. Navy Jurisdiction
(1) Benefits of Designating Navy Lands as Critical Habitat
Under section 7 of the Act, each Federal agency shall, in
consultation with the Service, insure that any action authorized,
funded, or carried out by the Federal agency is not likely to
jeopardize the continued existence of a listed species or result in
destruction or adverse modification of critical habitat. In the
consultation process, a determination is made as to whether the
proposed action is likely to result in jeopardy to the species or
destruction or adverse modification of critical habitat. If jeopardy
and/or adverse modification are likely, then the Service is required to
provide reasonable and prudent alternatives to the proposed action to
avoid jeopardy to the species and/or adverse modification of critical
habitat. In addition, under section 7 of the Act, if the proposed
action is not likely to jeopardize any listed species, but is
anticipated to result in incidental take of a listed species then
reasonable and prudent measures are required to minimize such
incidental take. The primary regulatory benefit of critical
[[Page 62955]]
habitat designation on Navy lands would be to ensure that no actions
authorized, funded, or carried out by the Navy would be likely to
destroy or adversely modify critical habitat.
Critical habitat was proposed on 8,285 ac (3,353 ha) of Navy lands
at the Communications Annex and the Ordnance Annex. These lands are
considered occupied by foraging Mariana fruit bats, and unoccupied by
the Mariana crow and Guam Micronesian kingfisher. In 1994 the Navy
entered into a cooperative agreement with the Service to create the
Guam National Wildlife Refuge Overlay on Navy lands in Guam (Navy and
USFWS 1994). The primary goal of the overlay refuge is to address the
conservation needs of listed species through ``* * * a long-term,
comprehensive program [that] * * * includes * * * brown treesnake
control and eradication, * * * habitat and ecosystem protection,
endangered and threatened species recovery and reintroduction.''(Navy
and USFWS 1994). This agreement also provided that the Navy will
coordinate with the Service for any Federal action which may affect
Navy lands included within the Guam National Wildlife Refuge and
identified in published recovery plans as providing essential habitat
for these three species. Approximately 8,278 ac (3,350 ha) of proposed
critical habitat were within the Guam NWR overlay lands on the two Navy
facilities. Therefore, any Federal activities which may affect these
areas, even if they are not currently occupied by the species, requires
coordination between the Service and the Navy regarding impacts to this
habitat.
Currently, the Service believes that the proposed critical habitat
for the Mariana crow and Guam Micronesian kingfisher on Navy lands is
unoccupied by these species. The recovery goals for these species are
discussed under ``Criteria Used to Designate Critical Habitat.'' In
order to reach the goals, unoccupied areas on Navy lands will need to
be occupied by self-sustaining populations. Neither recovery of these
species nor long-term conservation of the Mariana fruit bat are
possible without active management of their habitat, including brown
treesnake control, habitat restoration and enhancement, and control of
poaching (USFWS 1990a).
As noted above, a critical habitat designation in these unoccupied
areas would ensure that the Navy would consult with the Service for any
actions it proposes that may affect this unoccupied habitat, and would
require the Navy to avoid actions that would destroy or adversely
modify the habitat. However, avoiding habitat destruction or adverse
modification may not result in a reintroduction of these species, nor
other active conservation measures identified in the recovery plans and
currently being undertaken by the Navy to increase the quality of this
habitat for listed species (e.g. predator control, anti-poaching
efforts, etc).
Another potential value of a critical habitat designation on Navy
lands is the education of Navy personnel and the general public
concerning the conservation value of these lands. Proposed and final
critical habitat rules may serve an educational function by
communicating to the public and military personnel that specific land
areas are essential to the long-term conservation of listed species.
However, most of these benefits have been effectively communicated
through our publication of the proposed critical habitat rule, the many
public and interagency meetings held to discuss the proposal, and the
discussion of the excluded areas in the notice for this final rule. The
inclusion of much of this land within the Guam National Wildlife Refuge
overlay and the identification of essential habitat in the published
recovery plans for these species (USFWS 1990a; 1990b) also confer
important educational benefits.
(2) Benefits of Excluding Navy Lands From Critical Habitat Designation
The Navy is engaged in, or had committed to engage in, a wide
variety of proactive conservation activities on their lands in Guam.
These activities include brown treesnake control measures, protection
and enhancement of degraded habitat, and controlling the illegal
hunting of Mariana fruit bat.
The Navy has expressed concern that the overall economic burden of
a critical habitat designation may reduce the funding available for
these essential conservation activities. Given their strong statement
of opposition, there is also concern a designation on Navy lands may
reduce their incentive to maximize their conservation efforts on Guam
(Moore, in litt., 2002). The Service does believe that a critical
habitat designation may negatively affect the Navy's continued
commitment to large-scale conservation and management efforts on Guam,
as it would result in potential delays in completing section 7
consultation requirements that would be triggered by critical habitat
designations.
While section 7(a)(1) of the Act requires Federal agencies to carry
out programs for the conservation of listed species, it does not
require any specific actions or expenditures in any specific locations.
The conservation actions noted above remain voluntary on the part of
the Navy.
In addition, under the cooperative agreement which established the
Guam National Wildlife Refuge, the Navy retains the right to withdraw
its lands from the refuge if critical habitat is designated. While the
Navy has not openly stated any intent to do so, this remains a
possibility, and would be a considerable loss for the conservation of
these species.
The Service also finds that a final critical habitat designation
would negatively impact the Navy's military mission, and thus national
security. Overall, the Service has been able to work closely and in a
positive, collaborative fashion with the Navy to minimize potential
negative impacts to the Navy's training and operational activities as a
consequence of the Act's regulations. However, consultations cannot
avoid taking time, and in many cases conservation measures may result
from consultation. Delays and additional costs to accomplish training
or operational needs may have significant adverse consequences on
military readiness essential to national security.
Navy lands on Guam are used for training by the Navy, Marines,
Army, Air Force, National Guard and Reserves. Forces based in the
continental United States, along with those that are forward-based and
forward-deployed, train on these lands. The Ordnance Annex offers areas
for company-level operations, helicopter landing zones, and combat
swimmer training. The Communications Annex is suitable for ground
maneuvers, patrols and raids, and has a small arms range.
The Deputy Chief of Naval Operations has commented on this
proposal that:
``We are extremely concerned that a critical habitat designation
may curtail or prevent continued use of these areas for military
purposes, void taxpayer investments in infrastructure to support
military activities at these locations, and require costly
investments elsewhere to accomplish training requirements.''
Military experience in recent combat situations has demonstrated
that about 70 percent of combat casualties are due to lack of or
insufficient training (Draft Economic Analysis, page 6-43).
Modifications to training necessitated by a critical habitat
designation could reasonably result in less realistic training methods.
The Service is not in a position to determine how many such
restrictions, perhaps individually not having a significant impact, may
be incurred before training for Navy and
[[Page 62956]]
other military personnel would be degraded, whether the military might
feel required to switch its training elsewhere, at considerable cost to
taxpayers, or whether alternative areas are in fact available.
In addition to possible restrictions on training and operations,
the Navy has expressed concern over the delay inherent in having to
undertake additional consultations. Critical habitat designations are
likely to mean that certain Navy projects which currently receive
categorical exclusions from National Environmental Policy Act (NEPA)
requirements may be required to prepare NEPA documentation, in addition
to the section 7 consultations. This can result in additional costs of
between $20,000 to $100,000 and delays of six to nine months per
project. If the project in question is military training, these delays
could mean forces being deployed with inadequate training.
(3) The Benefits of Excluding Navy Lands From Critical Habitat Outweigh
the Benefits of Inclusion
Based on the above considerations, we have determined that the
benefits of excluding Navy lands on Guam from this critical habitat
designation, including benefits to national security, outweigh the
benefits of including them.
Exclusion of Navy Lands Will Not Cause Extinction of the Species
We conclude that the Navy's management plans and conservation
efforts will provide long-term conservation benefits greater than those
which would be provided if these Navy lands were designated as critical
habitat. The Refuge Overlay agreement and other conservation measures
described above have provided, and will continue to provide, tangible,
beneficial, proactive conservation measures that will reduce the
likelihood of extinction of these three species and increase the
likelihood of their long-term survival.
Private and Territorial Lands on Guam
We have excluded the approximately 4,930 acres (1,995 hectares) of
private and territorial lands proposed by us as critical habitat on
Guam under section 4(b)(2) of the Act. This is a discretionary
authority Congress has provided to the Secretary with respect to
critical habitat. The analysis which led us to the conclusion that the
benefits of excluding these areas exceed the benefits of designating
them as critical habitat, and will not result in the extinction of the
species, follows.
In this section, we first discuss the background and history of
critical habitat proposals on Guam, and summarize the Natural Resource
Management Plan that was developed by the Government of Guam and issued
for public comment by us on June 2, 2004 (69 FR 31073). After this
introduction, we analyze the benefits of including private and
Government of Guam lands within the critical habitat designation and
the benefits of excluding these areas.
Background: In 1991, the Service first issued a proposal for
critical habitat for the Mariana fruit bat, Mariana crow, and Guam
Micronesian kingfisher (56 FR 27485). Although initially requested by
the Governor of Guam, once the proposal was issued, both the Governor
and legislature strongly opposed it. In 1993, the Guam National
Wildlife Refuge was established by cooperative agreement with the Navy
and Air Force. Based on establishment of this overlay refuge, the
Service withdrew the critical habitat proposal in 1994. 59 FR 15696
(1994).
However, excess military land at Ritidian Point in Guam was then
transferred to the Service under the Federal excess property
regulations for inclusion in the refuge. Federal ownership and
regulation of land on Guam has been a particularly sore point in the
relationship between the Federal Government and the Government and
people of Guam since extensive condemnations of land on Guam for
military purposes occurred in the years following World War II.
In this case, there was some level of expectation on Guam that the
Ritidian Point lands would be made available to the Government of Guam,
or returned to the prior owners, and their transfer to the Service
provoked an extensive and long-lasting public outcry and created a
barrier to constructive working relations between the Government of
Guam and the Service. For many years there were regular demonstrations,
at times approaching riots, against the Refuge, accompanied by threats
against refuge staff to the point that law enforcement personnel had to
be assigned for their protection, and destruction of refuge property.
In addition, the Legislature of Guam enacted legislation in
reaction to this transfer (21 GCA 68950), which provided in part that
it was the policy of the Government of Guam to seek the termination of
Federal ownership of the wildlife refuge, and transfer of the property
to Guam; that Federal jurisdiction over ``local fauna, flora and
habitat'' be opposed, that neither the Government of Guam or any of its
agencies might express approval of the existence of the refuge or enter
into any agreements which could be construed as providing support for
the continuation of the refuge, and that ``the government of Guam
hereby disestablishes all Federal designations of critical habitat or
wildlife refuge as an act of sovereignty.'' Although the latter
provision conflicts with Federal law and is therefore invalid, it is an
express statement of local opinion regarding critical habitat
designations on Guam.
Natural Resource Management Plan for lands on Guam (Plan): The
Government of Guam developed a natural resource management plan as an
alternative to critical habitat and submitted it to the Service on
April 1, 2004. While Guam termed the plan an ``Integrated Natural
Resource Management Plan,'' we are labeling it a natural resource
management plan, or Plan, here to avoid confusion with the Integrated
Natural Resource Management Plans developed by the military pursuant to
the Sikes Act, which have a variety of statutory requirements
associated with them that are not applicable to Guam's plan, and which
are also discussed in this notice. We issued the Plan for public review
and comment as noted above.
The Guam Plan proposes making available 4,548 acres of Government
of Guam land to the recovery of the listed species, and a large number
of general and specific actions related to increasing public awareness
of the needs of the species, and habitat management and enhancement,
monitoring and training to assist in the recovery of the listed species
for which critical habitat is being considered.
We agree with the Government of Guam that its implementation would
be beneficial for the listed species. In general, recovery of these
species will require active management that includes but is not limited
to brown treesnake control, habitat protection and enhancement, and
translocation or reintroduction of species to establish several self-
sustaining populations. Failure to implement these management measures
would preclude recovery of the Mariana crow and Guam Micronesian
kingfisher and increase the risk of extinction for Mariana fruit bat.
It is unlikely that these efforts can occur successfully without the
support of the Government of Guam and without the use of Government of
Guam and/or private lands. We must also note that the Plan is far less
detailed and certain of implementation than the Integrated Natural
Resource Management Plans (INRMPs) developed by the Navy and the Air
Force for their lands on Guam, and if judged by the standards
established for INRMPs, it would likely not be approved. However, we
believe
[[Page 62957]]
that as a sign of the desire of the Government of Guam to increase
cooperation with the Service on the conservation and recovery of these
species, particularly when considered against past relations, it is a
significant positive step.
It is clear from the record that the designation of critical
habitat could be expected to adversely impact our working relationship
with the Government of Guam. The record indicates and we agree that
Federal regulation through critical habitat designation would be viewed
as an unwarranted and unwanted intrusion into Guam's affairs, and
likely be viewed by a sizeable segment of the population and of the
legislature as ``another Federal land grab.''
Our working relationship with the Government of Guam has been
improving in recent years in relation to natural resource programs of
mutual interest, following the disruptions and antagonisms that arose
over the previous critical habitat proposal, as discussed above. This
relationship provides a benefit to all parties involved in the
conservation of the listed species. Those benefits include Guam
applying for and receiving a Safe Harbor grant from the Service for the
control of brown treesnakes and reintroduction of the Guam rail, a
considerable lessening of the protests against the refuge, and Guam
undertaking several recovery actions for these species on its own and
in cooperation with the Service and with the military.
Analysis: The Benefits of Exclusion Outweigh the Benefits of Inclusion
(1) Benefits of Inclusion
Few additional benefits would be derived from including the Guam
lands in a critical habitat designation for the three species beyond
what would be achieved through the implementation of Guam's Plan and
continuation of their existing conservation efforts. The principal
benefit of any designated critical habitat is that activities in and
affecting such habitat with a Federal nexus require consultation under
section 7 of the Act and insure that Federal agency actions are not
likely to destroy or adversely modify such habitat. Such consultation
would ensure that adequate protection is provided to avoid destruction
or adverse modification of critical habitat. However, we conclude that
few regulatory benefits to the species would be gained from a
designation of critical habitat on these lands. This is because as
shown in the Economic Analysis, there are likely to be few, if any,
development projects with the required Federal nexus which would impact
the proposed critical habitat, and because the loss of essential
habitat on Guam territorial and private lands is not the primary threat
to these species. With respect to future conservation actions
undertaken by the Government of Guam under its Plan, since the use of
existing Federal funding is integrated into the projects proposed, the
section 7 consultation process will still be utilized to review these
projects for their consistency with the Recovery Plan and avoidance of
jeopardy to the species. The consultation process after a designation
of the Guam territorial and private lands as critical habitat is
unlikely to result in significant additional protections for the three
species.
Another possible benefit is that the designation of critical
habitat can help to educate the public regarding potential conservation
value of an area, and may focus efforts by clearly delineating areas of
high conservation value for the three species. Any information about
these species and their habitat that reaches a wide audience, including
other parties engaged in conservation activities, would be considered
valuable. The Government of Guam is currently working with the Service
to address habitat and conservation needs for the species, and if
nothing disrupts the relationship, we anticipate that they will greatly
increase their efforts, as proposed in their Plan. The public
educational benefits that might flow from the designation have almost
certainly already been accomplished due to the intense controversy over
the proposed designation.
For these reasons, then, we believe that designation of the Guam
territorial and private lands as critical habitat would have few
additional benefits for the three species.
(2) Benefits of Exclusion
The benefits of excluding the Guam lands from designated critical
habitat are more significant. They include: (1) The maintenance of
effective working relationships to promote the conservation of these
species and their habitat; (2) the allowance for continued meaningful
collaboration in projects contributing towards recovery of these
species; and (3) the provision of conservation benefits to the Guam
lands that might not otherwise occur.
The designation of critical habitat would be expected to adversely
impact our working relationship with the Government of Guam, as noted
above.
In testimony provided for a public hearing on the critical habitat
proposal, former Governor Carl Gutierrez stated (with reference to the
prospect of military lands being exempted from the designation and Guam
land not being exempted): `` Such unequal standards are likely to
increase the levels of non-cooperation between the Service and the
Government of Guam.''
In his official comment to the Service on the critical habitat
proposal, Governor Felix Camacho stated ``This action has the potential
to unravel much of the recovery infrastructure we have built on Guam
over the past twenty years including the GNWR [Guam National Wildlife
Refuge].'' This comment not only underscored the likely adverse impact
that would arise from a designation, but raised for the first time the
possibility of Guam accepting the existence of the refuge.
Subsequently, the news media reports the Governor has publicly raised
the issue of repealing the anti-refuge statute.
Similarly, in his letter transmitting the Plan to the Service,
Governor Camacho stated in part: ``As you are aware, this [the proposed
critical habitat designation] has been a very sensitive issue and has
impacted our programs for many years. I sincerely hope that this effort
is the beginning of healing those wounds and strengthening the
partnerships between us. * * * I am looking forward to working through
the necessary steps to make this plan come to fruition.''
The Service's then-Field Supervisor for the Pacific Islands Fish
and Wildlife Office relayed similar concerns over likely adverse
reactions to a critical habitat designation to the Washington office
following the initial decision to exclude Navy and Air Force lands from
the critical habitat proposal, as discussed above. ``The final CH will
consist primarily of GovGuam/CNMI and private lands, with a little bit
of fee-simple FWS refuge land. Many local Guamanians and Chamorro
activists, who are very outspoken at our public meetings and who have
rioted against the Federal government in the recent past, will likely
use this issue to continue to agitate against the Federal government on
Guam. They complain that they are treated differently than the Feds and
the military, and they may use this decision to support and press their
claim.'' (P. Henson, USFWS, in litt. 2003).
For these reasons, we believe that our working relationships with
the people and Government of Guam could well be enhanced if the Guam
lands are excluded from the designation of critical habitat for these
species, and are likely to be effectively eliminated if they are
included.
[[Page 62958]]
In addition, as noted above, recovery of these species will require
active management that includes but is not limited to brown treesnake
control, habitat protection and enhancement, and translocation or
reintroduction of species to establish several self-sustaining
populations. Not undertaking these measures would preclude recovery of
the Mariana crow and Guam Micronesian kingfisher and increase the risk
of extinction for Mariana fruit bat. It is unlikely that these efforts
can be successfully accomplished without the support and cooperation of
the Government and people of Guam, and the designation of critical
habitat is, as shown above, likely to preclude that support and
cooperation. Conversely, not designating it is likely to generate
increased cooperation and support, as shown by the Government of Guam's
development and submission of its Plan, and the comments of the
Governor accompanying its transmittal.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
In summary, the benefits of including the Guam territorial and
private lands in the critical habitat designation are limited to a
potential benefit gained through the requirements to consult and avoid
adverse modification under ESA section 7 where a Federal nexus exists,
and potential educational benefits. However, as discussed above, for
the Guam lands these benefits would be minimal or have already
occurred. The benefits of excluding these areas from being designated
as critical habitat for these species are more significant, and include
continued and improved cooperation between the Service and Guam towards
the conservation and recovery of the species, without which recovery is
unlikely to occur, and encouraging the continued development and
implementation of the conservation measures outlined in their Plan as
specific steps in that direction.
They also include avoiding the likely termination of cooperation as
a result of public and legislative hostility to a designation, avoiding
a reinitiation of public hostility towards the refuge, the primary
purpose of which is the conservation of the species for which the
critical habitat was proposed, and avoiding the risk that this
hostility towards the Service might spill over onto hostility towards
the conservation and recovery of these species.
We view the preservation and enhancement of good working relations
with Guam, and their continued and increased involvement in the
recovery efforts for these species, as a substantial benefit to which
we give considerable weight, and without which reintroduction and
recovery of these species is unlikely to occur. We accordingly find
that the benefits of excluding these areas from critical habitat
designation outweigh the benefits of including these areas.
(4) The Exclusions Will Not Result in Extinction of the Species
As noted above, the Service may exclude areas from the critical
habitat designation only if it is determined, ``based on the best
scientific and commercial data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species concerned.'' Here, we have determined that exclusion of the
Guam lands from the critical habitat designation will not result in the
extinction of the three species.
First, the primary threat to the species is predation by the non-
native brown tree snake, not destruction of habitat (Savidge 1986,
1987; USFWS 1990a, 1990b, 2004a, in prep; Wiles et al. 1995). Second,
the Economic Analysis found few projects likely to adversely modify the
species' habitat and having the required federal nexus for consultation
under section 7 of the Act were likely to occur, so that section 7
benefits from a designation, and impacts to section 7 protections from
a large exclusion, would be limited.
Thirdly, the Government of Guam has proposed a natural resource
management plan with valuable conservation objectives for these
species, and further proposes entering into an agreement with the
Service and other interested parties to carry out the Plan. Guam has
offered to undertake far greater conservation measures on these areas
than would be available through the designation of critical habitat.
Lastly, in the event Guam does not follow through on its proposals, we
retain the ability to designate critical habitat on Guam.
Accordingly, we have determined that the Guam territorial and
private lands should be excluded under subsection 4(b)(2) of the Act
because the benefits of excluding these lands from critical habitat for
these species outweigh the benefits of their inclusion and the
exclusion of these lands from the designation will not result in the
extinction of the species.
We recognize that between this exclusion and those provided to the
military lands initially considered for inclusion, we have excluded
most of the lands initially proposed for designation as critical
habitat for these species. However, Congress expressly contemplated
that exclusions of large portions of proposed critical habitat might
occur when it enacted the 4(b)(2) exclusion authority. The accompanying
Committee Report, House Report 95-1625, stated on page 17:
``Economic and any other relevant impact shall be considered by the
Secretary in setting the limits of critical habitat * * * The
consideration and weight given to any particular impact is completely
within the Secretary's discretion. * * * The Committee expects that in
some situations, the resultant critical habitat will be different from
that which would have been established using solely biological
criteria. In some situations, no critical habitat would be specified. *
* *''
We accordingly believe that these exclusions, and the basis upon
which they are made, are fully within the parameters for the use of
section 4(b)(2) set out by Congress.
Summary of Comments and Recommendations
In the proposed rule published on October 15, 2002 (67 FR 63738),
we requested all interested parties submit comments on the proposal by
December 16, 2002. We also contacted all appropriate Territorial,
Commonwealth, and Federal agencies; landowners; and other stakeholders
and invited them to comment. In addition, we solicited comments from
nine biologists, all with expertise in the fields of wildlife biology
and conservation biology to provide peer review of the proposed
critical habitat designation. On December 5, 2002, we published a
notice in the Federal Register extending the comment period to January
6, 2003 (67 FR 72407). On January 28, 2003, we published a notice to
reopen the public comment period to February 18, 2003, in recognition
of the damage and hardship sustained by Guam and Rota from Supertyphoon
Pongsona (68 FR 4160). This period allowed more time for submission of
comments on the proposed rule and draft economic analysis. In addition,
on June 2, 2004, we published a notice to reopen the public comment
period to July 19, 2004, to allow interested parties to consider and
comment on the Government of Guam's proposed alternative to critical
habitat designation (69 FR 31073).
Seventy-two individuals, organizations, or government entities
provided written and/or oral comments during the comment periods.
Comments were received from 2 Federal agencies, 9 Territory or
commonwealth agencies or elected officials (including the current
(Felix Camacho) and previous (Carl Gutierrez) Governors of Guam), 53
private organizations or individuals,
[[Page 62959]]
and 8 peer reviewers. We received oral testimony from 20 individuals on
Guam and 8 individuals on Rota during public hearings. Ten of the
individuals providing oral testimony also provided written comments or
a copy of their testimony. The remaining 33 individuals or
organizations provided only written comments. We reviewed all comments
received for substantive, relevant issues and new data regarding
critical habitat and the three species for which critical habitat was
proposed. Peer reviewer comments are summarized separately in the next
section. Public comments are grouped into four general issues relating
to the proposed critical habitat determination and draft economic
analysis and are addressed in the summary below.
Peer Review
We solicited independent opinions from a total of 33 knowledgeable
individuals with expertise in one or several fields, including
familiarity with the species, the geographic region, or the principles
of conservation biology. During our development of the proposed rule,
we sent draft maps of important habitat for the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher to 29 of those reviewers
and received responses from 9. In accordance with our policy published
on July 1, 1994 (59 FR 34270), we solicited peer review of the proposed
rule from 10 individuals, 6 of whom had reviewed the habitat maps
earlier. Of those 10, we received responses from 8. Peer reviewers
included experts from the Air Force, Philadelphia Zoo, Guam Department
of Agriculture, CNMI Division of Fish and Wildlife, Smithsonian
National Zoo, BirdLife International--Fiji, U.S. Geological Survey
(Forest and Range Ecosystem Science Center, Oregon; Fort Collins
Science Center), Lincoln Park Zoo (Chicago, Illinois), Colorado State
University, Virginia Polytechnic Institute and State University, and
private biological consultants.
All eight peer reviewers thought our methods for designating
critical habitat were sound, the best available scientific information
was used, and the relevant scientific literature, reports, and recent
research were summarized adequately. All eight also felt that inclusion
of currently unoccupied areas and of degraded areas with restoration
potential was justified and well supported, and that the definition of
primary constituent elements and the criteria used to identify the
proposed critical habitat were comprehensive, valid, and justified. All
eight reviewers generally supported the draft delineation of critical
habitat for the Mariana fruit bat, Mariana crow, and Guam Micronesian
kingfisher on Guam and for the Mariana crow on Rota.
Five peer reviewers stated that we had identified in the proposed
rule an ecologically appropriate configuration of habitats and
geographic areas. Five stated that this configuration includes
sufficient area overall to support the long-term conservation of these
three species, though several also noted it would be difficult to
justify changing the boundaries significantly. Two said the amount of
critical habitat proposed was the minimum necessary to support the
long-term conservation of the species. Four reviewers stated that the
inclusion of certain Government of Guam and private lands is justified
by the quality of the habitat in those areas. Two reviewers stated that
the designation of critical habitat is necessary for the recovery of
these three species despite the management challenges presented by the
brown treesnake, and one reviewer emphasized that, in addition, brown
treesnakes on Guam and rats and feral cats on Rota must be effectively
controlled as part of the long-term conservation of the Mariana fruit
bat, Mariana crow, and Guam Micronesian kingfisher. One reviewer
observed that designation of critical habitat is especially important
for the crow and kingfisher on Guam because, other than the very small
crow population on Andersen Air Force Base, these species are not
present. One reviewer particularly supported our recognition that the
Guam Micronesian kingfisher will need to have two populations on Guam,
and hence habitat in the south as well as in the north, for the species
to withstand chance occurrences that could extirpate a single
population. Two reviewers commended our reference to studies conducted
on related taxa in other locations and, at the same time, our caution
in applying the results of such studies to the Mariana Islands.
Responses to peer reviewer comments are included below with our
responses to public comments.
Issue 1: Biological Justification and Methodology
(1) Comment: Three reviewers questioned whether we had identified
sufficient critical habitat for the Mariana crow, given the large
territory size of this species. These reviewers also stated their
opinion that the population goals identified in the draft revised
recovery plan for the crow seem to be too low.
Our Response: The Service used published and unpublished
information about the habitat requirements of the Mariana crow to
define the primary constituent elements (PCEs) for this species, and we
identified areas on Guam and Rota containing these habitat
characteristics. We used recovery criteria drafted by our Mariana crow
recovery team and information about territory size to calculate the
amount of area needed to support viable populations to determine the
boundaries of critical habitat for the Mariana crow on Guam and Rota.
The recovery team drafted the population goals for recovery of the
species based on population viability analyses that included the best
data available on the demography and life history of the crow and on
its habitat parameters.
(2) Comment: Two commenters stated that the existing conservation
areas on Rota provide sufficient habitat for the Mariana crow and that
the crow population on the island doesn't require more than 1,500 or
2,000 acres.
Our Response: Our calculation of the amount of habitat required to
support a viable population of Mariana crows on Rota, which exceeds the
area encompassed by existing conservation areas on the island, was
based on the best available data on the crow's territory size and on
the recommendations of our Mariana crow recovery team. Please see the
section of this rule entitled ``Criteria Used To Identify Critical
Habitat'' for more details.
(3) Comment: One reviewer questioned whether we had identified
sufficient critical habitat for the fruit bat, given the data we
present on the wide-ranging foraging habits of this species.
Our Response: Our delineation of critical habitat for the Mariana
fruit bat was constrained by the extent of forest containing the
primary constituent elements needed by bats, i.e., food plants and
areas sufficiently remote to provide adequate roost sites. Although
bats do range widely when they forage, the presence of the PCEs, and
hence the quality of the foraging range, is variable. For example, the
large areas dominated by tangantangan do not provide foraging habitat
for fruit bats. These therefore were not included in critical habitat.
(4) Comment: One peer reviewer and one commenter suggested that the
Urunao and Jinapsan areas in northern Guam, and the cliff faces in
these areas and at Ritidian Point, should be included in critical
habitat because bats use these areas, they provide a buffer for the
historical fruit bat colony sites along the north coast, and they
contain the PCEs for the Mariana crow and Guam Micronesian kingfisher.
A commenter asked why lands below the cliffline are
[[Page 62960]]
included in critical habitat in some areas and not in others.
Our Response: We agree that some of the Jinapsan and Urunao private
lands do contain the PCEs for the Mariana fruit bat, Mariana crow, and
Guam Micronesian kingfisher, but some of these lands were not included
in the proposed critical habitat because these lands were degraded, and
we determined that they were not essential to the long-term
conservation of these species. For this same reason, we included in the
proposed critical habitat some areas below the cliffline and not others
(i.e., not all lands below clifflines are essential to the long-term
conservation of these species). We agree with the reviewer and
commenter, and in this final rule, we have included all of the Guam
National Wildlife Refuge lands at Ritidian Point in critical habitat,
including the cliff faces. After reviewing those small areas at Urunao
and Jinapsan that were included in the proposed critical habitat, in
this final designation we have determined that those private lands also
are not essential to the conservation of these species. Although they
do contain the PCEs, these lands are not included in the critical
habitat designation.
(5) Comment: One reviewer stated that the quality of the remaining
forest on Guam has declined since the 1990 recovery plans (USFWS 1990a,
1990b) defined ``essential habitat'' for Guam's endangered birds and
bats. This decline has resulted from increased populations of feral
pigs, deer, and carabao and encroachment by invasive alien plants, both
of which exacerbate the natural disturbance caused by typhoons. The
reviewer suggests that the critical habitat for the Mariana crow be
extended along the northwest and northeast of Guam to include the same
areas proposed for the kingfisher and fruit bat.
Our Response: We acknowledge the likelihood that forest quality has
declined on Guam since 1990, but without detailed documentation of this
decline, we are unable to assess it in relation to the PCEs for the
Mariana fruit bat, Mariana crow, or Guam Micronesian kingfisher. We
thus cannot calculate how much this decline in habitat quality would,
for example, influence territory size for the Mariana crow or Guam
Micronesian kingfisher in order to justify a commensurate increase in
the amount of habitat deemed essential for the long-term conservation
of these species. However, if new information becomes available about
the quality of this habitat and its adequacy for the conservation of
these species, we will consider amending this final critical habitat
rule.
(6) Comment: One reviewer observed that we did not adequately
articulate the justification for including coconut plantations in
critical habitat.
Our Response: While a coconut plantation does not contain all of
the primary constituent elements for all three species, coconut palms
provide some resources for them, and we identified some unoccupied
disturbed areas as essential to these species because they do contain
some PCEs for the species, have high restoration potential, and/or
provide connectivity between areas of high quality forest. Guam
Micronesian kingfishers were documented to excavate nest cavities in
coconut palms in coastal areas, and Mariana fruit bats and Mariana
crows have been documented to forage in coconut-dominated forests.
(7) Comment: One reviewer asked why the Sabana on Rota was not
identified as critical habitat for the crow.
Our Response: Surveys conducted on Rota in 1982, 1987, 1994, 1995,
and 1998 indicate that crows do not use the upper elevations of the
Sabana (Engbring et al. 1986; Engbring 1987; USFWS unpubl. data). We
conclude that this area does not contain the PCEs for the crow, and we
therefore do not include it in critical habitat for the Mariana crow.
We have, however, included areas along the slopes of the Sabana that do
contain the PCEs and are considered essential to the long-term
conservation of the Mariana crow.
(8) Comment: Several commenters and one reviewer expressed concern
that critical habitat designation could result in the deliberate
harassment of the crow, which already is disliked locally and
considered a pest. One reviewer stated that persecution of crows that
may result from the designation of critical habitat for the Mariana
crow on Rota is a serious concern because adult survivorship is the
demographic variable with the greatest influence on the viability of
the crow population.
Our Response: When we reviewed information about persecution
(intentional harm or harrassment) of crows on Rota for our prudency
determination, we found we had insufficient evidence to determine that
critical habitat for the crow on Rota was not prudent because of an
increased risk of take. Because we do not have documentation of
significant harassment of crows on Rota, we are again unable to use
this concern as justification for excluding Rota from critical habitat.
(9) Comment: Numerous commenters, including the previous Governor
of Guam, stated their opposition to critical habitat on the grounds
that it does not address control or eradication of the introduced brown
treesnake on Guam. Predation by the brown treesnake is commonly
accepted as the primary cause of decline in the Mariana crow and Guam
Micronesian kingfisher on Guam and is believed to have contributed to
the decline of the Mariana fruit bat on Guam, and these commenters
questioned the value of designating critical habitat for these species
before this major threat is removed.
Our Response: The continued need to address threats to an
endangered species does not obviate our statutory requirement to
designate critical habitat. Controlling predators is a conservation
issue separate from designating critical habitat on Guam. When a
species is considered for listing under the Act, we assess the status
of the species according to five factors specified in section 4(a)(1)
of the Act. The three species for which we are designating critical
habitat were listed as endangered in 1984, because of the effects of
all five (49 FR 33881); therefore, all five must be addressed to
recover these species. The loss of native habitat on Guam, predation by
nonnative animals, and poaching (for the Mariana fruit bat) were
particularly identified as the dominant factors leading to their
decline.
Addressing each of these threats to the Mariana fruit bat, Mariana
crow, and Guam Micronesian kingfisher entails a variety of activities.
While efforts to control the brown treesnake continue (including
trapping, research on the treesnake's physiology and ecology, and the
development of new toxicants and methods of delivery), it is vital that
habitat for Guam's native wildlife be safeguarded for the future. Brown
treesnakes may prey upon other animals, including native birds and
bats, but they do not affect the structure of Guam's native forests,
which harbor the primary constituent elements for the three listed
species regardless of the presence of snakes.
(10) Comment: Two commenters observed that critical habitat will
benefit brown treesnakes as well as the birds and fruit bat by
protecting habitat.
Our Response: Efforts to control the brown treesnake on Guam will
not be impeded by critical habitat designation. These efforts will take
place within critical habitat when researchers and land managers
determine control measures are appropriate, as they have taken place
previously in areas that are
[[Page 62961]]
inhabited by listed species. Brown treesnake research or control
experiments in critical habitat will include consultation with the
Service when necessary under section 7 of the Act, as they do now when
they are conducted in areas inhabited by the Mariana crow, Mariana
fruit bat, or any other listed species.
(11) Comment: Two commenters asked why the Service does not
designate critical habitat for these species on unoccupied islands, for
example, the northern islands in the CNMI, instead of on Guam and Rota.
Our Response: This final rule implements the requirement of the Act
to designate critical for these three listed species. Of these three
species, the only one known to occur in the uninhabited northern
islands in the Marianas is the Mariana fruit bat. Because the fruit bat
currently is listed as endangered only on Guam and is not listed in the
CNMI, we cannot designate critical habitat for the bat in the CNMI. To
the best of our knowledge, Mariana crows and Micronesian kingfishers
have never occurred on those islands, and we have no biological
justification for identifying critical habitat for Mariana crows and
Guam Micronesian kingfishers on those islands.
(12) Comment: Two commenters suggested that widespread use of
pesticides by the military following World War II may have been a
leading cause of the decline and extinction of Guam's birds, and the
commenters asked whether this possibility has been studied.
Our Response: The effect on Guam's wildlife of widespread DDT use
between the 1940s and 1960s has been investigated to some extent (Baker
1946; Drahos 2002), but the results have been equivocal (Diamond 1984;
Grue 1985). Although predation and habitat loss are the accepted
leading causes of the loss of Guam's native species, it is possible
that DDT contributed somewhat to the early declines, particularly of
insectivorous species such as the endangered Mariana swiftlet
(Aerodramus bartschi). It is important to note that DDT would have
affected populations of introduced predators as well, either through
toxicity or reduction of the prey base. Because these effects were not
measured at the time, it is difficult to sort out the relative impacts
of the pesticide on Guam's native birds and on the nonnative mammals
and reptiles that preyed upon them.
(13) Comment: Two commenters, including the acting Commissioner of
the Marianas Public Land Authority, stated that because one of our
major sources of scientific information (the revised recovery plan for
the Mariana crow) is in draft form, the Service has not used the best
available scientific and commercial data, and furthermore the Service
has used information that may be misleading or incorrect.
Our Response: The draft revised recovery plan for the Mariana crow
contains the best and most recent data on various aspects of the life
history and habitat requirements of the Mariana crow. The draft revised
recovery plan has not yet been through the Service's peer review
process or been approved by the Regional Director, but the information
compiled in this document comes from a wide variety of published and
unpublished sources that have been appraised by our Mariana crow
recovery team. This team is comprised of independent, scientific
experts who are well qualified to judge the value and accuracy of the
data and other information in the draft revised recovery plan,
including data generated by individual recovery team members.
(14) Comment: Two commenters asked how we know that the three
species will stay within designated critical habitat.
Our Response: Critical habitat is not intended to create a preserve
or protected area in which a particular listed species is somehow
confined. Rather, the delineation of critical habitat is based
fundamentally on our knowledge of which habitat components each species
requires to carry out its life functions, and thus where the species
have occurred naturally. Critical habitat, therefore, identifies those
areas where the listed species are most likely to occur and to thrive,
not to areas where they should be limited.
(15) Comment: Two commenters asked whether Service personnel had
trespassed on private property in the process of determining map
boundaries for critical habitat on Guam.
Our Response: Service biologists did not trespass on private
property at any time. The development of the proposed critical habitat
boundaries was based primarily on analysis of maps and aerial
photographs from the U.S. Geological Survey and IKONOS satellite
imagery, review of scientific literature, our own knowledge of the
area, and discussions with other scientists familiar with these three
species and with Guam and/or Rota. In addition to previous fieldwork,
we visited Guam just prior to beginning development of the proposed
rule, met with representatives of government agencies, and toured
military bases and other lands where we obtained authorized access.
(16) Comment: There is no biological basis for designating critical
habitat for the Mariana crow on Rota because the crow population on
that island is not presently limited by the availability of habitat,
and the size of the population currently exceeds the number of breeding
pairs needed for recovery, as specified in the draft revised recovery
plan.
Our Response: The purpose of critical habitat designation is to
identify areas containing the primary constituent elements necessary
for a listed species to carry out its life functions and to identify
the quantity of those areas that are ``essential to the conservation of
the species,'' irrespective of whether those areas are occupied by the
species or whether the species occupies a particular area at carrying
capacity.
(17) Comment: The Service has not addressed the adverse impacts of
jet noise on fruit bats and birds.
Our Response: The Service conducted a study in 1992-1995 to assess
the effect of aircraft overflights on Mariana fruit bats and Mariana
crows (Morton 1996). The results of this study did not indicate that
aircraft overflights directly contributed to nest failure in Mariana
crows, but the results did suggest that noise or visual disturbance in
proximity to a crow nest or fruit bat colony may disturb the animals
and cause them to leave nests or roost sites. Nevertheless, the
presence of auditory or visual human disturbances does not affect the
presence of the primary constituent elements used to define critical
habitat.
(18) Comment: The inclusion of forest at Jinapsan in critical
habitat is not appropriate because this habitat is on the windward side
of the island and prone to high damage from typhoons.
Our Response: The forest at Jinapsan was excluded from final
critical habitat designation. However, this forest is considered
essential to the conservation of the Mariana fruit bat, Mariana crow,
and Guam Micronesian kingfisher because it contains the primary
constituent elements for these species. The forest ecosystems of the
Mariana Islands have evolved with typhoons, a typical if irregular
natural disturbance in the archipelago. A particular windward forest
area may be affected more than other areas by typhoons, and this may
reduce its value for human activities, but it does not remove the value
of the area as habitat for native species.
(19) Comment: Why did the Service include unoccupied habitat in the
proposed critical habitat designation?
Our Response: Section 3(5)(A)(ii) of the Act provides a definition
for unoccupied critical habitat: ``specific
[[Page 62962]]
areas outside the geographical area occupied by the species * * * upon
a determination by the Secretary that such areas are essential for the
conservation of the species.'' In many cases, the population of an
endangered species is so small that the area currently occupied by the
species is not enough to support a larger, self-sustaining population.
On Guam, the small population of the Mariana crow and the absence of
the Guam Micronesian kingfisher provide extreme examples of this
situation.
Our recovery plans for these species identify the need to expand
existing populations and reestablish wild populations within their
historical range. Because of the very limited current range of the
Mariana crow on Guam and the extirpation of the Guam Micronesian
kingfisher from the wild, identifying only occupied areas as essential
clearly would not meet the conservation requirements of the species.
For example, the recovery goals for the Mariana crow call for a self-
sustaining population of at least 75 pairs in northern Guam. The area
occupied by the current population of 10-12 Mariana crows would be too
small to sustain a population of 75 pairs of crows.
When designating unoccupied habitat for these species, we first
evaluated lands that are suitable for each species. Of this suitable
habitat, we determined what areas are essential for the conservation of
each species using the guidelines outlined in the recovery plans (i.e.,
areas that contain one or more of the primary constituent elements and
that are either in good condition for conservation efforts or could be
made good through appropriate management actions) and would provide
space needed by the species to reach our recovery goals. These goals
are as follows: At least two permanent, major colonies of Mariana fruit
bats in northern Guam and one in southern Guam, each harboring at least
400 bats, and a minimum total bat population of 2,500 on the island
(USFWS 1990a); 75 pairs of Mariana crows each in northern Guam,
southern Guam, and on Rota (USFWS in prep); and 1,000 Guam Micronesian
kingfishers in northern and southern Guam (USFWS 2004a).
Subsequent to the proposed rule, exclusions were made in northern
and southern Guam (see ``Exclusions from Critical Habitat'' for
details). The designated critical habitat on Guam is considered
occupied by Mariana fruit bat and unoccupied by the Mariana crow and
Guam Micronesian kingfisher. The designated critical habitat on Rota is
considered occupied by the Mariana crow.
(20) Comment: The Service should designate 6,000 acres of critical
habitat for the Mariana crow on the mainland United States instead of
on Rota.
Our Response: The Mariana crow is only found, and to the best of
our knowledge has only ever been found, on the islands of Guam and Rota
in the Mariana Islands. Therefore, these islands are the only
appropriate locations for designating critical habitat for these
species.
(21) Comment: What criteria were used to determine which lands
would be included in critical habitat?
Our Response: We refer the commenter to the ``Critical Habitat
Designation'' section of the proposed rule and of this final rule.
In summary, as required by the Act and regulations (section 4(b)(2)
and 50 CFR 424.12), we used the best scientific information available
to identify areas that contain the physical and biological features
that are essential for the conservation of the Mariana fruit bat, Guam
Micronesian kingfisher, and Mariana crow. This information included:
Peer-reviewed scientific publications (e.g., Baker 1951; Jenkins 1983;
Wiles et al. 1995; NRC 1997); published and draft revised recovery
plans (USFWS 1990a, 1990b, 2004a, in prep); the final listing rule (49
FR 33881); unpublished reports by the Guam Division of Aquatic and
Wildlife Resources (GDAWR), CNMI Division of Fish and Wildlife (DFW),
and the Service (e.g., Wiles 1982a; Engbring and Ramsey 1984; Morton
1996; Morton et al. 1999); aerial photographs and satellite imagery of
Guam and Rota; personal communications with scientists familiar with
the species and habitats; and comments received during public comment
periods and in response to critical habitat outreach packages. Specific
information we used from these sources includes estimates of historic
and current distribution, abundance, and territory sizes for the three
species, as well as data on resource and habitat requirements. From
recovery plans, we considered the recovery objectives and the
assessments of the habitat necessary to meet these objectives, as well
as life history information.
(22) Comment: Why was the cargo drop zone on Andersen Air Force
Base not included in critical habitat?
Our Response: Degraded habitats that have high restoration
potential may be included in critical habitat designations. In this
case, the area that has been completely cleared of vegetation for the
Air Force's cargo drop training is likely to remain cleared for this
purpose and therefore has little potential for restoration of the
primary constituent elements for the three species.
(23) Comment: The previous Governor of Guam commented that the
Service's criteria for including private lands in critical habitat was
not applied evenly because lands with high economic value were
deliberately left out to avoid a high estimate of economic impact.
Our Response: The development potential or economic value of lands
was not considered in determining the boundaries of proposed critical
habitat. These boundaries were based on biological criteria. Potential
economic impacts were estimated subsequent to the delineation of
proposed critical habitat.
(24) Comment: Why has the Service designated critical habitat for
species that are extinct?
Our Response: We have not. In the proposed rule, the Service
determined that designating critical habitat for the little Mariana
fruit bat, Guam broadbill, and Guam subspecies of bridled white-eye is
not prudent because these species likely are extinct. On February 23,
2004, the Service removed the Guam broadbill from Federal List of
Threatened and Endangered Species due to extinction (69 FR 8116) and
will consider delisting the remaining species in the future as staffing
and funding resources allow. This final designation includes critical
habitat for the Guam Micronesian kingfisher, a species that, while
extirpated from the wild, is not extinct.
Issue 2: Policy and Regulations
(25) Comment: One peer reviewer stated that to designate critical
habitat primarily on Federal lands is appropriate because consultation
under section 7 of the Act applies to Federal agencies. Several
commenters, including the acting Commissioner of the Marianas Public
Lands Authority, asked that the Service exclude all private lands from
the critical habitat designation. Two of these commenters asked why we
include private lands if there is no Federal nexus to trigger section 7
consultation and if critical habitat does not provide substantial
protection for these endangered species. Several commenters requested
that we exclude private lands, access corridors to these private lands
through Federal lands, Federal excess lands, and/or a range of specific
properties on Guam and Rota from critical habitat. The commenters claim
that such exclusions legally can be made because they will not result
in the extinction of these species.
[[Page 62963]]
Our Response: It is true that consultation under section 7 takes
place between Federal agencies, but this consultation is triggered by
actions that are carried out, authorized, or funded by Federal agencies
on state, Territorial, or private lands, as well as by actions on
Federal lands. Therefore, the section 7 consultation aspect of critical
habitat is not solely relevant to Federal lands.
Critical habitat designation is one of a number of conservation
tools established in the Act that can play an important role in the
long-term conservation of a species. Designation of critical habitat is
a way to guide Federal agencies in evaluating their actions, in
consultation with the Service, such that their actions do not hamper
conservation of listed species. If activities on private lands
designated as critical habitat do not involve any Federal funding or
authorization, then the landowner should not be affected by the
designation. There are, however, educational or informational benefits
to the designation of critical habitat. Educational benefits include
the notification of landowners, land managers, and the general public
about the importance of protecting the habitat of these species and
dissemination of information regarding their essential habitat
requirements.
We identify critical habitat based on biological and management
criteria described in section 4(b)(2) of the Act, and we apply these
criteria irrespective of land ownership and the potential for Federal
involvement in development or other land use projects. We can also
exclude lands from critical habitat under section 4(b)(2) of the Act.
Although it is true that exclusions cannot be made if they will result
in the extinction of the species, this is not the sole criterion that
allows us to make an exclusion. We direct the commenters to the section
of this rule entitled ``Exclusions from Critical Habitat'' for
information about areas excluded from the final critical habitat
designation.
(26) Comment: Several peer reviewers stated that future
conservation projects may justify a reconsideration of the critical
habitat boundaries, but existing conservation activities, including
Integrated Natural Resource Management Plans (INRMPs) prepared by the
U.S. Navy (Navy 2001) and U.S. Air Force (Air Force 2003), are
insufficient to supplant the protections afforded by critical habitat
designation. Furthermore, planned future conservation activities are
either too far from implementation or do not address the recovery goals
for these three species sufficiently to warrant exclusions from
critical habitat of the lands involved in such current or planned
projects.
Our Response: The Service fully complies with the Act in assessing
potential exclusions from critical habitat designations. Please see the
section of this rule entitled ``Exclusions from Critical Habitat'' for
a description of the exclusions leading to this critical habitat
designation.
(27) Comment: The military lands on Guam have the conservation
benefits of the overlay refuge and are physically protected by high
security and restricted access. The designation of critical habitat
thus will not be a significant imposition to further development.
Our Response: We have excluded Air Force and Navy lands from this
final designation. See the section of this rule entitled ``Exclusions
from Critical Habitat'' for detailed discussion of why these areas have
been excluded from the final designation.
(28) Comment: Two reviewers and several commenters stated that a
Habitat Conservation Plan (HCP) for the Mariana crow on Rota would be
preferable to the designation of critical habitat because the HCP would
be a multilateral effort and thus more acceptable to the local
community and government than critical habitat, a regulatory action
imposed unilaterally by the Service. Several commenters asked what the
status would be of critical habitat on Rota if the HCP were completed,
whether it will still be possible to complete the HCP once critical
habitat is designated, and whether the designation of critical habitat
is taking place because the HCP isn't finished.
Our Response: We agree that the protective measures and actions of
an HCP can be very effective in conserving important habitat features
(e.g., primary constituent elements). Completed HCPs have been excluded
from critical habitat designations because of their management and
protective measures or because there are greater conservation benefits
in excluding HCPs from a designation. However, the lack of a completed
HCP was not the reason for this critical habitat designation. The
designation of critical habitat and the development of HCPs are
independent regulatory processes that arise from different sets of
circumstances and different sections of the Act. Under section 4(a)(3)
of the Act, we are generally required to designate critical habitat for
a species at the time it is federally listed as an endangered or
threatened species, and in accordance with section 4(b)(2), on the
basis of the best scientific data available and after taking into
consideration the economic impact, and any other relevant impact, of
specifying an area as critical habitat. Under section 10 of the Act,
habitat conservation plans are developed to permit and provide
mitigation for take of listed species associated with development and
other projects on non-Federal lands. HCPs are undertaken at the
discretion of non-Federal landowners, and the development of an HCP on
Rota has been an ongoing process for nearly a decade. In 2002, the
Service awarded $244,000 to the CNMI to support the completion of an
HCP on Rota for the development of agricultural homesteads and the
Mochong cultural center. In 2004, the Service awarded $339,522 to the
CNMI to support the completion of an island-wide HCP for Rota. In the
future, the completion of HCPs on Rota and the establishment of the
associated mitigation areas may provide a basis for review and revision
of the critical habitat boundaries on Rota.
(29) Comment: Several commenters, including the previous Governor
of Guam, felt that the Service did not adequately inform local
governments and agencies and private landowners about the pending
critical habitat proposal or involve them in the process. Several
commenters expressed a desire for the Service to hold more public
meetings and hearings and stated that the format for the hearings was
inappropriate and questions raised should have been answered there.
Our Response: We have made a significant effort to contact and
inform local stakeholders on Guam and Rota and include them in the
critical habitat process. We mailed information and other materials to
private landowners using land ownership information and addresses
obtained from the Government of Guam and the CNMI. We also attempted to
meet and obtain input from many of the resource management agencies on
Guam and in the CNMI that could be affected by a designation, including
the Guam Division of Aquatic and Wildlife Resources and CNMI Department
of Land and Natural Resources. We also attempted to contact
representatives of the Chamorro Land Trust Commission (CLTC) and CNMI
Board of Public Land regarding the pending critical habitat proposal.
The Service has done its best to solicit input from the local
communities on Guam and Rota and provide opportunities for individuals
to communicate their concerns and comments. Our court-ordered deadline
for publishing a final decision on critical habitat did not leave time
for additional meetings or hearings. We realize that the public hearing
format is
[[Page 62964]]
frustrating because it is primarily a forum for individuals to submit
their comments and have them entered into the record, not for
discussion of concerns. Such discussion likely would prevent some
comments from being recorded in the record due to time constraints. For
this reason, the Service held public meetings the month prior to the
hearings, so that individual questions could be answered. Please see
the chronology of our outreach efforts in the ``Previous Federal
Actions'' section, above.
(30) Comment: Several commenters, including the current and
previous Governors of Guam and the Governor of the CNMI, urged the
Service to seek alternatives to critical habitat, and some requested
that a group including representatives of all the landowners and other
stakeholders in land use and conservation be convened to discuss such
alternatives.
Our Response: We have considered alternatives within the context of
our determination that designating critical habitat is prudent for the
Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher. On
June 13, 2003, the Guam District Court granted a deadline extension to
allow the Government of Guam time to develop an alternative to critical
habitat designation on Guam. On June 5, 2004, the Government of Guam
provided the Service a proposed alternative to critical habitat
designation. After reviewing the Government of Guam proposal, we
determined that the benefits of designating Government of Guam lands
and private lands on Guam as critical habitat did not outweigh the
benefits of excluding them from designation. Please see the ``Analysis
of Impacts Under ESA 4(b)(2)'' section for details.
After the extension was granted on June 13, 2003, we also notified
the Mayor of Rota and Mariana Public Land Authority that there was
additional time to discuss potential alternatives to designation of
critical habitat on Rota. However, we received no response from the
CNMI on developing alternatives.
In addition to excluding Government of Guam lands and private lands
on Guam, we excluded Air Force and Navy lands from critical habitat
designation under sections 4(a)(3) and/or 4(b)(2) of the ESA, as
amended by Section 318 of the fiscal year 2004 National Defense
Authorization Act. Please see the ``Exclusions from Critical Habitat''
section for details.
(31) Comment: Conservation on the Mariana Islands would be better
addressed through public-private partnership projects than through the
designation of critical habitat.
Our Response: We have a legal obligation to designate critical
habitat for listed species to the extent prudent and determinable. Some
areas may be excluded from critical habitat, for example, under section
4(b)(2) of the Act. As previously stated, however, we will continue to
work with landowners, and the potential exists for reviewing and
possibly revising critical habitat boundaries in the future.
Partnerships among private landowners, the Service, and conservation
organizations are a highly effective conservation tool, and we welcome
initiatives from private landowners to explore the potential for
partnerships on their land. We refer interested parties to the
ADDRESSES section of this rule and encourage them to contact the
Pacific Islands Fish and Wildlife Office to inquire about the
Conservation Partnerships program, which may have funding to support
projects on private lands. Projects and management plans for private
lands that include commitments to activities that will contribute to
the long-term conservation of these three endangered species may
warrant our future review of the critical habitat boundaries.
(32) Comment: The current and previous Governors of Guam stated
that the Guam Conservation Initiative proposed by the Government of
Guam was a better approach to the conservation of these endangered
species and their habitats than the designation of critical habitat.
Our Response: To the best of our knowledge, the Guam Conservation
Initiative is in draft or proposal form and is not a program that has
been funded or instituted on Guam. We therefore had no basis for
evaluating the potential for excluding Government of Guam lands based
on the ``Guam Conservation Initiative.'' However, on June 5, 2004, the
Service did receive a proposed alternative to critical habitat
designation from the Government of Guam. We reviewed their proposal and
excluded Government of Guam lands from critical habitat designation
because the benefits of designation did not outweigh the benefits of
exclusion. Please see the ``Analysis of Impacts Under Section 4(b)(2)''
section for a details.
(33) Comment: Several commenters, including the current and
previous Governors of Guam, stated their belief that the designation of
critical habitat will be detrimental to existing conservation
activities because it will result in the loss of the overlay refuge on
military lands on Guam and the associated cooperative agreements with
the Air Force and Navy. It was also contended that critical habitat
would result in the loss of funds and other resources that presently
are used for conservation projects on these lands because these
resources will be needed to complete section 7 consultations triggered
by proposed actions within critical habitat.
Our Response: The Air Force and Navy lands were excluded from the
critical habitat designation under sections 4(a)(3) and/or 4(b)(2) of
the Act, as amended by Section 318 of the fiscal year 2004 National
Defense Authorization Act. See ``Exclusions from Critical Habitat'' for
a more detailed discussion of the exclusions.
(34) Comment: Numerous commenters, including the current and
previous Governors of Guam and the CNMI Senate, expressed their concern
that the designation of critical habitat will place a disproportionate
regulatory burden on local governments and private landowners and that
private landowners will be subject to stringent Federal regulations.
These commenters also expressed concern that the designation of
critical habitat will restrict owners' activities on their private
lands, will ``lock up'' or restrict access to those lands (e.g., the
agricultural homestead lots on Rota), or result in the condemnation or
confiscation of private lands and the transformation of public lands
into nature preserves or zoos.
Our Response: Critical habitat designation does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other special conservation area. It does not allow government or public
access to private lands and will not result in closure of the area to
all access or use. A critical habitat designation does not constitute a
land management plan. Rather, it triggers the requirement that Federal
agencies must consult with the Service on activities they authorize,
fund, or carry out that may affect critical habitat.
When local government or private landowners seek a Federal permit
or Federal funding, the Federal permitting or funding agency must
consult with the Service on actions that may affect listed species or
designated critical habitat. The draft economic analysis and addendum
identify the potential Federal actions that may result in consultations
on the listed species and critical habitat on Guam and Rota over the
next ten years. The regulatory burden of critical habitat designation,
in the form of consultation under section 7(a)(2) of the Act, falls on
Federal government agencies, not directly on local governments or
private landowners. We anticipate that the majority of projects
[[Page 62965]]
on private or Commonwealth lands probably will go forward unimpeded
because there will be no Federal nexus. In the rare case where a
Federal project on private land is likely to result in destruction or
adverse modification of critical habitat, the Service must provide,
within a specified time period, reasonable and prudent alternatives
that will allow the project to avoid adverse modification. Finally, we
have never intervened in local land use proceedings in the CNMI and do
not anticipate doing so in the future.
(35) Comment: The current and previous Governors of Guam commented
that the military's INRMPs provide them with an alternative that can
gain these agencies exclusion from critical habitat under the Act.
Allegedly non-Federal landowners do not have that alternative.
Our Response: Air Force lands were excluded under section 4(a)(3)
of the ESA, as amended by subsection (a) Section 318 of the fiscal year
2004 National Defense Authorization Act, because their INRMP provides a
benefit to the Mariana fruit bat, Mariana crow, and Guam Micronesian
kingfisher (see ``Exclusions from Critical Habitat''). This section of
the Act only applies to military installations. However, any landowner
can develop a management plan to conserve essential habitat that may
provide a basis for excluding lands from a critical habitat designation
under the Act. We refer interested parties to the ADDRESSES section of
this rule and encourage them to contact our Pacific Islands Fish and
Wildlife Office to obtain additional information about developing
management plans for listed species.
(36) Comment: The previous Governor of Guam stated that Executive
Order 13175 establishes conditions for designation of critical habitat
on tribal lands in the United States that are different from conditions
for designation of the lands in unincorporated territories.
Our Response: We agree. Executive Order (E.O.) 13175, Consultation
and Coordination with Indian Tribal Governments (65 FR 67249, November
9, 2000), pertains only to Indian or Alaska Native tribes as defined in
the Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a, and this
Act does not include the Chamorro people. E.O. 13175 provides general
guidelines for Federal interaction with these tribes and makes no
mention of unincorporated Territories; therefore, E.O. 13175 has no
relevance to this designation of critical habitat.
(37) Comment: The previous Governor of Guam commented that the
lands at Ritidian Point not included in the designation must have low
habitat value in the Service's view, and they therefore should be
exchanged for lands at Falcona.
Our Response: Some of the Service-owned lands within the Guam
National Wildlife Refuge were not included in the proposed designation
because of a mapping error. All of Service-owned lands at Ritidian
Point that are part of Guam National Wildlife Refuge are considered
essential to the conservation of these species and are now included in
this critical habitat designation.
(38) Comment: Two commenters stated that the amount of land
designated on Guam as critical habitat for the Mariana crow amounts to
as much as 100 times more land per crow than is currently used by each
human resident of Guam.
Our Response: Critical habitat is designated based on the
conservation needs of the species. This includes adequate area for
foraging and breeding. The size and foraging characteristics of the
Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher
necessitate sufficient area for adequate breeding sites and to obtain
enough food to survive and reproduce. The designation of critical
habitat does not preclude other uses of these lands.
(39) Comment: Several commenters stated that the Service cannot
designate critical habitat on islands in the same way we do on
continents; we must take into consideration the limited land base on
islands and the proportion of the entire land base being designated.
Our Response: In accordance with section 3(5)(A)(i) of the Act and
regulations at 50 CFR 424.12, in determining which areas to propose as
critical habitat, we are required to base critical habitat
determinations on the best scientific and commercial data available and
to consider those physical and biological features (primary constituent
elements) that are essential to the conservation of the species and
that may require special management considerations or protection. These
features include, but are not limited to: Space for individual and
population growth, and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, or rearing of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
Changing the size of a critical habitat designation to meet a specified
percentage of a given larger land area elsewhere would result in a
designation that may be scientifically invalid.
(40) Comment: Andersen Air Force Base should be excluded from
critical habitat because (a) the INRMP for the base provides
substantial protections for the Mariana fruit bat, Mariana crow, and
Guam Micronesian kingfisher and their habitat on Guam, (b) the Air
Force has provided draft text to amend its INRMP to include more
specific projects that will contribute to the long-term conservation of
these species, and (c) the Air Force has agreed to conduct
consultations under section 7 of the Act for the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher and has agreed to
maintain and improve the primary constituent elements for these species
on its lands. Little additional benefit will accrue to these species
with the designation of critical habitat other than the trigger for
interagency consultation under section 7 of the Act. Furthermore,
critical habitat designation may have a negative impact on the current
conservation projects that benefit these species if resources are
diverted to meet consultation requirements and/or if the Air Force
removes its lands from the Guam National Wildlife Refuge.
Our Response: We have excluded Andersen Air Force Base from the
final critical habitat designation pursuant to the provisions of
Section 318 of the fiscal year 2004 National Defense Authorization Act.
(41) Comment: The INRMP for the Navy lands on Guam provides
substantial protections for the Mariana fruit bat, Mariana crow, and
Guam Micronesian kingfisher and their habitat on Guam, and these
protections are superior to those that would be provided by critical
habitat. This INRMP was prepared in cooperation with the Service, and
the Service approved it. In the Cooperative Agreement establishing the
Guam National Wildlife Refuge overlay on Navy lands, the Navy has
agreed to conduct consultations under section 7 of the Act for the
Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher and
has agreed to maintain and improve the primary constituent elements for
these species on its lands. Little additional benefit will accrue to
these species with the designation of critical habitat other than the
trigger for interagency consultation under section 7 of the Act.
Furthermore, critical habitat designation may have a negative impact on
the current conservation projects that benefit these species if
resources are diverted to meet consultation requirements and/or if the
[[Page 62966]]
Navy removes its lands from the Guam National Wildlife Refuge.
Our Response: We have excluded the Navy lands from the final
critical habitat designation under section 4(b)(2) of the Act. See
``Exclusions from Critical Habitat'' for a more detailed discussion of
the exclusions.
(42) Comment: Two commenters, including the acting Commissioner of
the Marianas Public Lands Authority, expressed a concern that the
clearing of private land designated as critical habitat will constitute
``take'' and would therefore be a violation of section 9 of the Act.
Our Response: Clearing (i.e., removal of vegetation) of any land
designated as critical habitat does not automatically constitute
violation of section 9 of the Act. Section 9 prohibits the taking of
any wildlife species. The term ``take'' means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct (16 U.S.C. 1532 (19).
(43) Comment: Several commenters, including the acting Commissioner
of the Marianas Public Lands Authority, requested more time to review
the proposed rule and draft economic analysis after Supertyphoon
Pongsona hit Guam and Rota on December 8, 2002. One commenter asked
that we extend the final deadline for the rule.
Our Response: We reopened the comment period from January 28 to
February 18, 2003, to allow the residents of Guam and Rota more time to
provide their comments once basic services and infrastructure had been
restored. An extension on the deadline for this final rule could be
obtained only through a request submitted to the U.S. District Court
for Guam. On May 30, 2003, the Government of Guam filed a motion to
extend the deadline for publication of the final rule to allow time to
develop an alternative to critical habitat designation on Guam. The
deadline extension was granted by the Guam District Court on June 13,
2003. On April 5, 2004, the Government of Guam submitted their proposed
alternative to critical habitat to the Service as ordered by the Guam
District Court. The court ordered that this final rule be submitted for
publication in the Federal Register no later than October 18, 2004.
(44) Comment: The Service should use the draft economic analysis in
the determination of prudency for critical habitat.
Our Response: The first step in the critical habitat process, the
proposed determination of whether or not a designation for any species
is prudent, is a decision based on biological and conservation
considerations, not the potential economic impacts of the designation.
Furthermore, the economic analysis cannot be made in a detailed,
quantitative fashion until maps of the proposed critical habitat are
completed. As defined by regulation, prudency examines whether critical
habitat would harm or benefit the species (see 50 CFR 424.12(a)(1)). If
critical habitat is prudent, we look at all of the impacts of
designating specific areas as critical habitat to see if the benefits
of designation outweigh the benefits of excluding an area from critical
habitat. Should we determine that critical habitat is not prudent
because it will not provide additional conservation benefit to the
species or will result in increased threat to the species, we would not
conduct an economic analysis. When we do propose critical habitat, we
then use the economic analysis to assess possible exclusions under
section 4(b)(2) of the Act.
(45) Comment: Current enforcement of the Act on Rota is sufficient
to protect the Mariana crow and its habitat.
Our Response: The Service is required by law to designate as
critical habitat those areas which are essential to the long-term
conservation of listed species, unless the economic or other impacts of
designation outweigh the conservation benefits. All critical habitat
designated on Rota is currently occupied by crows. Activities that may
result in the destruction or adverse modification of critical habitat
include those that alter the primary constituent elements of the
designated area to an extent that its value for both the survival and
long-term conservation of the Mariana crow is appreciably diminished
(see ``Critical Habitat'' section of the rule for further discussion).
(46) Comment: Several commenters expressed their belief that
designation of critical habitat for the Mariana crow on Rota will cause
significant resentment in the local community and government, provide a
disincentive for participation in voluntary conservation projects, and
create obstacles to future crow conservation efforts on the island.
Our Response: We acknowledge that, despite the Service's outreach
activities, considerable misapprehension remains about the impacts of
critical habitat designation on land use on Rota. Nevertheless, absent
documentation that the designation of critical habitat would increase
the threat to the Mariana crow, or be offset by adverse economic or
other impacts, we have no basis either for changing our prudency
determination or for excluding lands on Rota from critical habitat.
We also reiterate that a critical habitat designation does not
affect land ownership or establish a refuge, wilderness, reserve,
preserve, or other special conservation area. It does not allow
government or public access to private lands and will not result in
closure of the area to all access or use. A critical habitat
designation does not constitute a land management plan. Rather, it
triggers the requirement that Federal agencies must consult with the
Service on activities they take or fund that might affect critical
habitat, and on Rota this requirement is already triggered by the
presence of Mariana crows throughout the area designated as critical
habitat.
We recognize that critical habitat is only one of several tools
provided in the Act to accomplish long-term conservation of listed
species and that this goal is best achieved through cooperation between
the Service and the community. We hope that members of the Rota
community interested in initiating conservation projects for the
Mariana crow will be guided by this critical habitat designation to
areas where their efforts will be of greatest benefit. We welcome ideas
and proposals for conservation projects and will seek funding to
support such projects. We continue to work closely with the people of
Rota and the CNMI government to develop HCPs, and we have awarded the
CNMI a total of $583,522 to facilitate this effort. We may reevaluate
critical habitat boundaries after HCPs are completed.
(47) Comment: The sole basis for the Service's reversal of its 1991
determination (that designating critical habitat for these species was
not prudent) appears to be losses that the Service has experienced in
other, significantly different litigation.
Our Response: Our rationale for our determinations is presented in
the proposed rule (67 FR 63738), under the section entitled ``Prudency
Determination.'' With respect to Guam and Rota, the Service is
obligated to comply with the decisions of the Ninth Circuit Federal
Court of Appeals.
(48) Comment: As long as the little Mariana fruit bat, Guam
broadbill, and Guam bridled white-eye are listed, they are entitled to
the full protection of the Act, and the Service should propose critical
habitat for them. The determination that critical habitat is not
prudent for these species is a ``back door approach'' to delisting
them.
Our Response: The assumption that all species listed under the Act
still survive confuses the likely reality of extinction with the
regulatory process of delisting extinct species under the Act.
[[Page 62967]]
Our statements in the proposed rule that these three species likely are
extinct are based on the well-documented last sightings, decades ago,
and records of these species and repeated, thorough efforts by
scientists to find them. The final rule delisting the Guam broadbill
was published on February 23, 2004 (69 FR 8116). The delisting of the
other two is not currently scheduled. Given the Service's large listing
and critical habitat workload, we must make priority decisions that
offer the greatest benefit to those species that survive.
(49) Comment: If designating critical habitat is not shown to harm
the (likely extinct) species, the Service is bound to designate their
critical habitat.
Our Response: There are two criteria for determining that a
critical habitat designation is not prudent. One is that the
designation would result in taking or vandalism of the species, and the
other is that critical habitat is not beneficial to the species.
Designation of critical habitat will not benefit likely extinct
species.
(50) Comment: The Service cannot exclude unoccupied areas from
critical habitat based on ``special management'' under section 3(5)(A)
of the Act because this criterion only applies to lands occupied by the
species at the time of their listing and because this management cannot
replace the benefits of section 7 consultation.
Our Response: We have excluded the Navy lands from the final
critical habitat designation under section 4(b)(2) of the Act. Please
see the section of this rule entitled ``Exclusions from Critical
Habitat'' for a more detailed discussion of the exclusions.
(51) Comment: Several commenters asked if their comments mattered
or if decisions about the critical habitat designation had already been
made.
Our Response: Public comments are an opportunity for the Service to
obtain additional information about the species and areas involved in
the critical habitat designation, as well as about the questions and
concerns of landowners and other stakeholders. We do our best to
incorporate all relevant information we receive and to address
individual concerns and questions. The final designation of critical
habitat reflects both the requirements of the law and the input from
stakeholders insofar as it is possible to incorporate this input
without compromising the biological basis for the designation.
(52) Comment: The proposed rule in the Federal Register is too
technical and difficult to understand and should be translated to the
Chamorro language.
Our Response: The Service strives to make its public documents as
simple as possible without compromising their scientific integrity and
legal sufficiency. In all of our documents, we strive to use plain
language in government writing. Although we did not make the rule
available in other languages, we did produce extensive outreach
materials to facilitate the public's understanding of the proposed
designation. For example, we produced an illustrated fact sheet about
the proposed rule entitled ``Critical Habitat for Six Species of
Mariana Island Birds and Bats,'' which was available at the public
meetings and hearings and was mailed with the proposed rule to a total
of 127 interested parties. Please refer to the ``Previous Federal
Action'' section of this rule for a description of the Service other
outreach efforts for this designation. We continue to work with the
public to provide information and promote a better understanding about
critical habitat. We will continue ongoing discussions to help the
local communities better understand the critical habitat designations
as well as to learn more about the Mariana Crow, Mariana fruit bat, and
Guam Micronesian kingfisher.
(53) Comment: How will critical habitat affect harvesting of plants
for cultural uses?
Our Response: Critical habitat will have no effect on such
collecting if it takes place on non-Federal lands and involves no
Federal money or authorization.
(54) Comment: The ``essential habitat'' for the Mariana crow
outlined on Rota in the draft revised recovery plan provides a good
basis for collaboration with the Rota community to conserve this
habitat and improve its quality for crows. Such a cooperative,
voluntary approach is liable to meet with greater conservation success
than the imposition of critical habitat.
Our Response: We hope that these conservation activities will take
place regardless of this critical habitat, which is only one of many
potential tools for addressing long-term conservation of the crow on
Rota. The Service recognizes that to improve the current condition of
Mariana crow on Rota, it is insufficient to simply regulate harmful
activities. Rather, it is necessary to carry out active management
measures to confer a benefit on the species of concern, such as habitat
manipulation, exotic species control, or simply allowing access for the
purposes of reintroduction (Bean 2002).
(55) Comment: If military lands on Guam are excluded from critical
habitat, the Government of Guam lands and private lands designated as
critical habitat may become commensurately more important.
Our Response: The Air Force and Navy lands identified as essential
habitat but excluded under sections 4(a)(3) and/or 4(b)(2) of the Act,
while not designated critical habitat, would remain part of the total
acreage of habitat essential to the conservation of these species on
Guam.
(56) Comment: Several commenters stated that the Government of
Guam's proposed alternative to critical habitat designation does not
provide an adequate management plan for its conservation lands and is
not an acceptable alternative to critical habitat designation on
Government of Guam lands.
Our Response: We agree that the Government of Guam's proposed
alternative to critical habitat designation is not comparable to an
INRMP developed for military lands. However, we believe that as a sign
of the desire of the Government of Guam to increase cooperation with
the Service on the conservation and recovery of the Mariana fruit bat,
Mariana crow, and Guam Micronesian kingfisher, particularly when
considered against past relations, it is a significant positive step.
We also believe that implementation of this plan will benefit these
species. Therefore, we have excluded Government of Guam lands from
critical habitat designation. See ``Analysis of Impacts Under Section
4(b)(2)'' for additional information.
(57) Comment: Several commenters stated that very few of the
projects in the Government of Guam's proposed alternative to critical
habitat designation are new. Therefore, this proposal offers little
additional benefit to the species. In addition, these commenters also
stated that there is no guarantee that the projects outlined in the
proposal will be implemented because Guam lacks the funding and staff
to implement many of the actions.
Our Response: We agree that some of the projects outlined in the
Government of Guam's proposed alternative to critical habitat are
ongoing projects. However, we disagree that the Government of Guam's
proposed alternative to critical habitat provides little additional
benefit to the species. Therefore, we have excluded Government of Guam
lands from critical habitat designation. See ``Analysis of Impacts
Under Section 4(b)(2)'' for additional information.
(58) Comment: Two commenters stated that ungulate eradication is a
high priority for Guam's conservation lands but is not addressed in
their proposed
[[Page 62968]]
alternative to critical habitat designation.
Our Response: We agree that ungulate eradication is not
specifically addressed in the Government of Guam's proposed
alternative. However, their alternative does include ungulate control-
related activities such as developing comprehensive management plans
for Philippine sambar deer and feral pigs that could include
eradication of ungulates on Government of Guam conservation lands.
(59) Comment: One commenter stated that Guam's proposal does not
discuss how long Guam's conservation lands will be protected and how
Guam will prevent and prosecute illegal encroachment on their
conservation lands.
Our Response: We agree that the Government of Guam's proposed
alternative to critical habitat designation does not specifically
address the duration in which their conservation lands will be
protected for endangered species conservation or how protection will be
enforced. However, we still believe that that the benefits of excluding
Government of Guam lands from critical habitat designation outweigh the
benefits of inclusion. Therefore, Government of Guam lands were
excluded under section 4(b)(2) of the Act. See ``Analysis of Impacts
Under Section 4(b)(2)'' for additional information.
Issue 3: Other Relevant Issues
(60) Comment: Two reviewers observed that although the rule
published by the Service proposing critical habitat on Guam and Rota
contained clear and meticulous explanations of what critical habitat
is, how it works, and how little threat it poses to landowners, this
rule nevertheless has resulted in misunderstandings and significant
resentment and frustration in the local communities. These reviewers
suggest that the Service should engage in more public outreach efforts
and present additional and more summarized and simplified materials
explaining the designation to gain the understanding and support of the
local people on Guam and in the CNMI.
Our Response: Significant outreach efforts were made regarding this
critical habitat rule (see our response to Comment 33) in an effort to
resolve misconceptions and allay public concerns. We produced an
information sheet summarizing the proposed rule that was mailed to all
interested parties and that was available at the public meetings and
hearings. At public meetings, we were available to answer questions and
engage in discussion that is prohibited at hearings.
(61) Comment: One reviewer stated that if the proposed critical
habitat delineation already reflects concessions by the Service to
political or socioeconomic considerations, this should have been
clearly articulated in the proposed rule.
Our Response: The proposed critical habitat was delineated based on
biological and other conservation-related criteria, without considering
potential economic or political impacts of a critical habitat
designation. As required by the Act, economic and other relevant
impacts have been considered in this final designation. The ``Critical
Habitat Designations'' section of this rule describes in detail how we
defined the primary constituent elements for each of the three species,
how we identified areas that are essential to the conservation of these
species, and how we applied criteria used to exclude some of the
proposed lands from the proposed critical habitat.
(62) Comment: Several commenters, including the Governor of the
CNMI, the Rota delegation to the CNMI Legislature, and the CNMI Senate,
wrote that the CNMI government has policies and legislation in place
that demonstrate a commitment to the conservation of Rota's natural
environment and render critical habitat unnecessary.
Our Response: We lack substantial documentation of conservation
activities or commitments to conservation activities on Rota that
address the long-term conservation of the Mariana crow.
(63) Comment: Two commenters, including the acting Commissioner of
the Marianas Public Lands Authority, wrote that lands on Rota described
as ``public'' in the proposed rule actually belong collectively to
people of Mariana descent and are managed for these people by the
Mariana Public Lands Authority.
Our Response: In a meeting with the Service in Honolulu on January
14, 2003, representatives of the Mariana Public Lands Authority
clarified the status of the lands they manage on behalf of the people
of the Mariana Islands and discussed other concerns and questions they
had about this critical habitat designation.
The references to ``public lands'' in sections 1.2.6, 4.1.2.3,
6.2.2, 6.2.2.1, and 6.3.2.3 and Figure 6-2 of the DEA are to those
lands identified in Article XI, Section 1, of the Commonwealth
Constitution as ``public lands belonging collectively to the people of
the Commonwealth who are of Northern Marianas descent.'' When referring
to Rota, the term ``public lands'' is intended to be used in the DEA as
it is used in the Commonwealth Constitution.
We acknowledge the slightly inaccurate description of the term in
section 1.2.6 of the DEA, which refers to ``public lands owned by
CNMI.'' This phrase was intended to identify ``public lands'' as
described in the paragraph above. The identification of the CNMI
government as ``owner'' of public lands on Rota is intended to describe
the role of the Marianas Public Lands Authority as a government entity
representing the people of the Commonwealth who are of Northern
Marianas descent. The clarification of the term ``public lands'' does
not alter the conclusions on economic impact, as presented in sections
6.2.2 and 6.3.2 of the DEA.
(64) Comment: Will critical habitat delay the airport expansion
project on Rota?
Our Response: No, a small area proposed as critical habitat that
overlapped the action areas for the proposed airport expansion has not
been included in this final designation because we have determined that
it is not essential to the long-term conservation of the Mariana crow.
At the time of this writing, the Service is involved in section 7
consultation with the Federal Aviation Administration on the airport
expansion. Independent of critical habitat, both Federal agencies
agreed that the project may affect the Mariana crow, and thus entered
into consultation to ensure the airport expansion project is in
compliance with the Act.
Issue 4: Economic Issues
(65) Comment: One reviewer stated that the DEA does not consider
the full range of activities that could be affected by critical
habitat.
Our Response: A comprehensive and systematic approach was used to
identify the activities likely to occur within the 10-year assessment
period. Data collection methodology is presented in Chapter 5 of the
DEA. For Guam, we identified potentially affected landowners and land
managers with information from the Government of Guam's Division of
Land Management and Department of Revenue and Taxation; we notified
these owners and managers, in writing, of the proposed critical habitat
designations and our desire to meet with them to obtain information for
use in the DEA; and we conducted either telephone interviews or in-
person meetings with potentially affected landowners and managers to
identify reasonably foreseeable activities within the 10-year
assessment period.
[[Page 62969]]
For Rota, meetings were requested and conducted with representatives
from CNMI and Rota government offices because most of the island of
Rota is comprised of publicly owned lands. Additional activities on
Guam and Rota were identified by reviewing the documents listed in the
references in the DEA addendum, conducting additional inquiries with
local and Federal government agencies, and reviewing information
received during the public comment period.
(66) Comment: One reviewer asked why the cost of section 7 is
estimated to be so high for the Rota Airport extension when the
proposed project area lies outside of the critical habitat boundary.
Our Response: Section 6.2.2.1.1 of the DEA and section 3.3 of the
DEA addendum describe costs associated with the proposed extension of
the Rota Airport. The estimated costs in the DEA were based on
government costs associated with conducting section 7 consultations; a
biological survey, presumed because of the belief that neighboring
areas contained primary and secondary breeding habitats for the Mariana
crow; and annual biological monitoring. These costs were estimated to
total $111,650 over a 10-year period.
Since the DEA was published, the Service was informed by the
consultants preparing the National Environmental Policy Act (NEPA)
environmental assessment (EA) that the western runway protection zones
would indeed fall within proposed critical habitat and that the
affected area (approximately 300 by 500 ft (91 by 152 m)) may need to
be cleared to extend the grassed and fenced airport area. A larger area
extending further west may be modified in such a way that the height of
the forest does not exceed the elevation of the runway (585 ft (178 m)
above sea level).
As described in section 3.3 of the DEA addendum, the consultants
preparing the EA informed us that the document will provide more
information for use in the section 7 consultation process. Without the
benefit of details in an EA, the Service anticipates that a formal
section 7 consultation with the Federal Aviation Administration may be
necessary, suggesting section 7 costs in the medium range (from Table
6-1 in the DEA) with no annual biological monitoring. The cost of a
biological survey considered in the DEA ($7,800) remains as a cost of
the section 7 consultation. The revised section 7 consultation cost is
$33,050 over a 10-year period. This cost is $78,600 less than the
$111,650 estimated in the DEA.
(67) Comment: One reviewer noted that small economic entities will
be largely unaffected by critical habitat.
Our Response: Based on the DEA and its addendum, a substantial
number of small entities are not expected to be significantly impacted
by the critical habitat designation. As indicated in section 6.4 of the
DEA and section 5 of its addendum, entities affected by the intended
designation are Urunao Resort Corporation (Guam), a Chamorro family
(Guam), Marianas Agupa Inc. (Rota), and individual CNMI residents
(Rota). Since the DEA was published, both the Municipality of Rota and
Marianas Pro-Plan International were identified as small entities
directly affected by critical habitat. These entities represent a very
small fraction of the total number of the small entities on Guam and
Rota, and they therefore are not considered a substantial number of
small entities as suggested in the guidance on implementing the
Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act guidance.
(68) Comment: Several commenters stated their belief that critical
habitat will have major impacts on private landowners, such as project
redesign, acquisition of easements (and associated paperwork), property
devaluation associated with critical habitat, and the need for a
typical landowner to hire a consultant to ``overcome the multitude of
regulatory hurdles he will encounter'' once critical habitat is
designated. One commenter stated that these costs will amount to 10 to
100 times the estimated figure, and another stated that the estimate of
$35,000 in the draft economic analysis for impacts of critical habitat
to private landowners on Guam is a gross underestimate. Another
commenter stated that the designation of critical habitat will prevent
landowners from gaining $2 million worth of income annually due to a
perception that critical habitat will lead to the condemnation of land.
The commenters believe that the Service has not adequately identified
or assessed these impacts.
Our Response: As identified in section 6.1 of the DEA addendum, the
Service comprehensively and systematically attempted to obtain input
from potentially affected landowners and managers, including private
landowners. Activities likely to occur within the 10-year assessment
period were identified and incorporated in section 6.2.1.4 of the DEA.
Sections 3 and 4 of the DEA addendum provide further evaluation of
potential impacts to private landowners based on information received
during the DEA public comment period. These include impacts on Federal
funding, loans, and insurance eligibility; impacts on property value;
condemnation of land; and costs to investigate implications of critical
habitat on private property.
Potential section 7 consultation costs associated with Federal
funding, loans, and insurance are evaluated in section 3.1 of the DEA
addendum. In general, Federal funding or loans for new construction
require consultation, and because very few Federal mortgage insurances
are provided for new construction, consultation is not likely for
Federal mortgage insurance.
Property value losses associated with critical habitat, discussed
in section 4.2 of the DEA addendum, may be based on facts and an
accurate assessment of the implications of critical habitat or on
perceptions that the designation will cause significant changes in
market value and economic benefits. Based solely on direct compliance
costs, a decrease in private property value due to critical habitat
designation is expected to be small. The reason for this is that few
projects and activities in these areas would be subject to
consultations, and project modifications are not expected to be
burdensome. Additional effects on property values (e.g., stigma
effects) are described in Section 4.2.1 of the DEA addendum.
Section 4.3 of the DEA addendum states that critical habitat
designation does not result in the condemnation of land or any other
form of land acquisition by the Service. On occasion, the Service does
purchase land, e.g., for a wildlife refuge, but this would be a
separate action from critical habitat designation. As such, any land
purchase should be evaluated at the time it is proposed and should be
based on what is actually proposed. When the Service does purchase
private property, e.g., to establish a National Wildlife Refuge, the
normal practice is to do so only when (1) the landowner is willing to
sell the land, and (2) the price and other terms are acceptable to the
landowner. Finally, the Service currently has no plan to purchase land
on Guam.
Regarding costs associated with investigating the implication of
critical habitat on private property, landowners that can afford
professional services may feel it necessary to retain counsel, land
surveyors, biologists, and other experts to determine the implications
of the designation on their property. Costs associated with these
investigations are discussed in detail in section 4.4 of the DEA
addendum. The total cost ranges from roughly $216,630 to $738,700 on
Guam and $75,690 to $258,100 on Rota for all landowners whose property
falls
[[Page 62970]]
within proposed critical habitat boundaries.
(69) Comment: The previous Governor of Guam stated that the
analysis of economic impacts to private landowners must be based not on
current conditions (limited access) but on the assumption that the
unfettered access ordered by the Federal court were actually granted,
which would increase the value of the property.
Our Response: Sections 6.2.1.4.1 and 6.2.1.4.2 of the DEA provide
more detailed descriptions of existing conditions. Access to Uranao and
Jinapsan properties along the northern coastlines of Guam requires
travel through Andersen Air Force Base. Current travel restrictions on
the base are solely a function of national security concerns
implemented by the base. For this reason, we believe it appropriate to
assume that unfettered access represents the current or baseline
condition. It is possible that different current or baseline conditions
could change the potential economic impacts from this designation.
However, we selected what we believe to be the most accurate
description of baseline conditions.
(70) Comment: Several commenters, including the Governor of the
CNMI, the CNMI Senate, the Rota Delegation to the CNMI Legislature, and
the acting Commissioner of the Mariana Public Lands Authority, observed
that the section 7 consultation burden generated by critical habitat
will impede projects on private lands that involve Federal permits for
infrastructure development, Federal Highway Administration funds for
primary village roads, Department of Veterans Affairs (VA) mortgage
loans, or Federal mortgage insurance. These agencies will not pay to
send survey teams to the Mariana Islands to conduct the necessary
studies (to formulate biological assessments, etc.).
Our Response: Sections 6.2.1.4 and 6.2.2.2 of the DEA describe
projects on private lands on Guam and Rota for which the potential
impacts of proposed critical habitat were originally evaluated. The
impact of the potential section 7 nexus of Federal funding for private
construction on lands proposed for designation has been evaluated with
additional information in section 3 of the DEA addendum. Potential
impacts vary between agencies and are discussed individually below.
The Federal Highway Administration annually gives Guam $13 million
and CNMI $3 million (of which approximately $400,000 is allocated to
Rota). Designation of critical habitat would not impede the funding but
may have an impact on which projects the local government chooses to
fund. The costs of section 7 consultation and any other required
environmental compliance would be withdrawn from the same grant.
Economic impacts of critical habitat associated with Federal
Highway Administration funding are unlikely to be significant on Guam.
As discussed in section 3.1.1 of the DEA addendum and based on the Guam
2010 Highway Master Plan (Wilbur Smith Associates 1992), new roadway
projects and road improvements are more likely to be in demand in
heavily traveled areas outside of proposed critical habitat. The cost
of consultations estimated in section 3.1.1 of the DEA addendum would
represent a relatively minor cost, approximately 0.1 percent, relative
to the Federal Highway Administration $13 million grant provided to
Guam. Based on interviews with Rota government representatives,
projects planned for the next 10 years were identified, including one
roadway project. Consultation costs associated with Federal Highway
Administration funding on Rota, estimated in section 6.2.2.1.2 of the
DEA, represent two percent of the $400,000 grant allocated to Rota.
The recent history of VA mortgage guarantees and home loans differs
between Guam and Rota. On Guam, the VA provides mostly mortgage
guarantees for existing structures, not new construction. For this
reason, and because most lenders do not use the VA for new construction
loans, VA mortgage guarantees on Guam are not likely to be affected by
critical habitat as it was proposed. On Rota, home loans have been
provided for new construction projects. Based on the VA home loans
provided since 1994, it is reasonable to project that one to two VA
home loans could occur in isolated areas in critical habitat in the
next 10-year period. Direct impacts and costs associated with section 7
consultations were estimated in section 3.1.2 of the DEA addendum.
Section 3.1.3 of the DEA addendum addresses U.S. Department of
Housing and Urban Development (HUD)/Federal Housing Administration
programs that exist on Guam and Rota. These include HUD grants
(Community Development Block Grants), HOME Investment Partnership
Program, Emergency Shelter, and other competitive grants under Homeless
Assistance) and Federal Housing Administration mortgage insurance.
Based on the findings in section 3.1.3 of the DEA addendum, HUD grant
projects are unlikely to occur in undeveloped areas that are likely to
be subject to requirements associated with critical habitat. Another
program under HUD, the Federal Housing Administration mortgage
insurance program, assists individuals with obtaining a loan. It has
been used about twice in 2002 on Guam, used very little in the last 10
years on Guam, and had not been used at all in the last 10 years on
Rota. Because HUD-supported projects are unlikely to occur in
undeveloped areas and are infrequently used, together with the fact
that HUD endorsements for single-family home mortgage insurance are
listed in their environmental procedures as categorical exclusions that
are not subject to the related Federal environmental laws and
authorities, it is unlikely that section 7 consultation would occur.
(71) Comment: One commenter stated that critical habitat
designation will prevent the development of real estate on CLTC lands
because lending institutions will not take risks on loans for
development of lands encumbered by special environmental/conservation
status. This status creates too much risk of lawsuits. This commenter
stated that they would choose not to be involved in projects within
designated critical habitat.
Our Response: The economic costs associated with the loss of
planned development on CLTC lands in critical habitat is addressed in
section 4.1 of the DEA addendum. Primary lending institutions,
including the HUD Direct Home Loan program, are likely to request that
the prospective buyer consider other properties as it is in their
interest, or it is their requirement (as in the case of HUD's
programs), to avoid properties with site encumbrances. Lenders will
generally look to unencumbered property for development (Hirokoshi in
litt. 2003). If there is no option, it is likely that additional
requirements would be needed to mitigate the risks of project
development (Kuiokoa, in litt. 2003). Depending upon the situation,
lenders may loan less money for projects with environmental
encumbrances than for those without such encumbrances (Hirokoshi, in
litt. 2003).
One lender indicated that the biggest concern for lenders is that
critical habitat will decrease marketability and value of the property.
In the absence of documented effect based on critical habitat, this
concern is based on experience with properties associated with
wetlands. Another concern identified was that environmental regulations
may change due to evolving scientific information. Potential property
value losses for land in critical habitat are discussed in section
4.2.2 of the DEA addendum.
[[Page 62971]]
While it is prudent for lenders to avoid risks on loans for
development of lands encumbered by special environmental/conservation
status, it is more likely that real estate development on CLTC lands
will be impeded by CLTC lease requirements, which limit lessees to
people of Chamorro descent. Because of this limitation, CLTC practices
do not abide by the Fair Housing Law, which prohibits discrimination in
housing because of race or color, national origin, religion, sex,
familial status, or handicap. Lack of implementation of the Fair
Housing Law prevents use of government-sponsored enterprises, such as
the Government National Mortgage Association (Ginnie Mae) and the
Federal Home Loan Mortgage Corporation (Freddie Mac). Federal Housing
Administration mortgage insurance and VA loans are available only to
lenders and borrowers whose projects abide by the Fair Housing Law,
although attempts to obtain exceptions for native Chamorros may be
underway. Such an exception could occur as exceptions have been made
under the VA loan program for native Americans.
If Chamorros were to be exempted from the requirements of the Fair
Housing Law, designation of critical habitat would represent an
additional encumbrance that will need to be evaluated by prospective
lenders. Because many of the lenders would look to secondary mortgage
markets, approximately half of which are government-sponsored
enterprises, lenders are required to consider requirements of these
government-sponsored enterprises. However, as discussed in sections 3.2
and 4.1 of the DEA addendum, it is unlikely that critical habitat
designation would result in additional costs or processing solely from
attempts to obtain government-sponsored enterprises mortgages, Federal
Housing Administration mortgage insurance, or VA loans.
(72) Comment: Several commenters stated their belief that the
designation of critical habitat will severely impede economic
development, improvement of basic infrastructure, and the provision of
basic needs to the people of Guam and Rota.
Our Response: As discussed in sections 3.1 and 6.6 of the DEA
addendum, Federal agencies, such as Federal Highway Administration and
HUD, were contacted to obtain information about their past practices
and requirements with respect to environmental regulations. In general,
the local agencies responsible for allocating Federal funds to local
projects consider environmental issues prior to approving projects for
funding. Most Federally funded projects have occurred in developed
areas to meet community needs, as is the case with HUD Community
Development Block Grants funds. Development projects occurring within
the 10-year assessment period are described in Chapter 6 of the DEA and
include: (1) Reuse of the former Federal Aviation Administration
Housing parcel on Guam, (2) improvements at the Rota International
Airport, (3) roadway improvements to Route 100 on Rota, (4) roadway
improvements to Routes 5 and 12 on Guam, (5) development of the
Marianas Agupa Golf Course, (6) development of a solid waste disposal
landfill on Rota, and (7) implementation of the Homesteads program on
Rota. Of the projects with a possible Federal nexus, all are expected
to proceed even with critical habitat designation.
(73) Comment: Two commenters stated that the economic analysis
makes an incorrect assumption that the CNMI government and/or the
municipality of Rota are not ``small entities.''
Our Response: As discussed in section 5 of the DEA addendum, we
have determined that the CNMI government is not a small entity under
the Regulatory Flexibility Act (Title 5, U.S. Code sections 601-612),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, because it governs a population of greater than 50,000 people.
The Regulatory Flexibility Act/Small Business Regulatory Enforcement
Fairness Act defines ``small government jurisdictions'' as the
government of a city, county, town, school district, or special
district with a population less than 50,000. However, based on
population, the Municipality of Rota can be considered a small entity.
Using the U.S. Environmental Protection Agency guidance, ``1999
Revised Regulatory Flexibility Act/Small Business Regulatory
Enforcement Fairness Act Guidance for Environmental Protection Agency
Rulewriters,'' the recommended quantitative method for evaluating the
economic impact of a rule on small government entities is to evaluate
the annualized compliance costs as a percentage of annual government
revenue. The estimated annual cost of proposed critical habitat
designation to the Municipality of Rota, based on the 10-year estimate
of section 7 consultation and project modification costs, is $13,860.
The annual municipal operating budget for Rota is estimated at $13.5
million. Using the Environmental Protection Agency methodology
described above, the costs associated with section 7 consultation and
project modification would comprise 0.1 percent of Rota's annual
municipal operating budget. A more detailed discussion of costs is
provided in section 5 of the DEA addendum.
(74) Comment: One commenter recommended the addition of a synopsis
at the beginning of the economic analysis.
Our Response: The commenter's suggestion that the Executive Summary
of the DEA should include a brief synopsis of the evaluation addressing
the efficacy and cost/benefit ratio of the proposed designation is
appropriate for improving the readability and ease of understanding of
the DEA. However, presentation of an accurate cost/benefit ratio is not
possible because some of the costs and many of the benefits are not
quantified. This reflects the uncertainty about the outcome of the
designation of critical habitat and the fact that many of the benefits
of critical habitat are best expressed in biological terms, for which
an economic value has not been determined.
(75) Comment: One commenter observed that the economic analysis
addresses only the impacts of section 7 consultation, only weakly
characterizes the economy of Rota, and fails to consider the ``backlash
effect'' of critical habitat designation on Rota and other indirect
effects. This commenter asked that the comment period be reopened
subsequent to a revision of the economic analysis.
Our Response: As stated in the Executive Summary, the DEA addresses
only section 7-related economic impacts and that costs related to other
sections of the Act are outside the scope of the analysis. Because the
Act requires the Service to consider the ``benefits of inclusion vs.
the benefits of exclusion'' of critical habitat within any particular
parcel, it is appropriate to address section 7 impacts. Additional
indirect impacts associated with the designation of critical habitat
are addressed in section 6 of the DEA and in section 4 of the DEA
addendum.
Information used to characterize the economy of Rota was obtained
through a comprehensive literature search. Unfortunately, very little
information specific to Rota was available. Since the publication of
the DEA, additional information has been identified and incorporated
into the sections of the DEA addendum relating to Rota. Such data
include: the annual operating budget of Rota; visitor counts; numbers
of families below the poverty level; and breakdown of personal income
by age.
Further consideration of this additional economic data does not
[[Page 62972]]
substantially alter the findings in the DEA. In the case of
reevaluating the regulatory flexibility analysis, considering Rota as a
small entity, the analysis demonstrated that the proposed designation
of critical habitat will not have a significant economic impact on
Rota. As described in section 5 of the DEA addendum, the potential
costs associated with the designation of critical habitat are estimated
to be only 0.1 percent of Rota's annual municipal operating budget.
Indirect cost impacts associated with a potential ``backlash
effect'' of critical habitat designations on Guam and Rota are
presented in Sections 6.3.1.4 and 6.3.2.2 of the DEA. Section 6.3.1.4
introduces the basis for the strong negative sentiments associated with
Federal restrictions on land on Guam. Economic impacts associated with
this ``backlash effect'' may include those associated with drawn out
negotiations and delays in Federal project schedules. As described in
the DEA, the cost of negotiations and delays to the Federal government
could be significant. The potential for residents of Rota to react
negatively toward the Mariana crow is addressed in section 6.3.2.2 of
the DEA. In the DEA, it is acknowledged that ``should the scenario of
impacts on the Mariana crow due to critical habitat rule-making be
realized, the effects and costs would be great, essentially causing the
intentions of critical habitat to back-fire.'' Further discussion of
``backlash'' effects is constrained by the inability to anticipate or
quantify what potential actions may occur.
(76) Comment: One commenter suggested that the economic analysis
discussion of Rota's population should separate U.S. passport holders
from alien guest workers.
Our Response: Data from the 2000 U.S. Census, a 1997 U.S.
Department of Commerce Economic Census of Outlying Areas, and a 2001
Bank of Hawaii Commonwealth of the Northern Mariana Islands Economic
Report were reviewed to determine the social and economic makeup of
Rota. Although census data identified 1,017 non-citizen residents out
of the population of 3,283 people, the available data do not
characterize the employed workforce of 1,591 people by citizenship.
(77) Comment: One commenter advised that the economic analysis
should more clearly characterize the economy of Rota and carefully
distinguish between statistics for Rota and statistics for the CNMI as
a whole.
Our Response: We agree that the economic character of Rota is
different from that of CNMI as a whole and that the CNMI Gross Island
Product is not a relevant figure to use in describing Rota's economy.
However, as the commenter acknowledged, tourist arrival and hotel
occupancy data for Rota are limited. The accuracy of available tourism
data is suspect based on the lack of distinction of airport arrivals
between tourists and business travelers arriving at the airport and the
non-participation of Rota's hotels in Hotel Association of the Northern
Mariana Islands, the organization which provided occupancy rates for
CNMI hotels. Information from the 2000 CNMI Statistical Yearbook states
that there were 9,826 visitors to Rota in 2000, down from 12,437 in
1999. The data in the economic analysis for government and private
sector employment are from the 2000 U.S. Census. According to the
census data, when employment by government is compared to employment in
the private sector as a whole, there is greater private sector
employment (62.9 percent vs. 35.7 percent in government). However, when
employment figures are evaluated by industry (e.g., public
administration, manufacturing, construction, wholesale, retail,
service, etc.), public administration is the leading industry.
In addition to attempting to obtain information specific to Rota,
the potential economic impact to small entities, including the
Municipality of Rota, is reevaluated in section 5 of the DEA addendum.
This analysis concluded that the economic impact of proposed critical
habitat to Rota would be 0.1 percent of the annual municipal budget.
(78) Comment: One commenter stated that text in the economic
analysis regarding Coastal Resource Management Office requirements and
the potential for this agency to change their regulations as a result
of the critical habitat designation is not valid and should be deleted.
Our Response: As discussed in section 4.5 of the DEA addendum,
while the Coastal Resource Management Office did not provide specific
comments on this DEA addendum, it is believed that the designation of
critical habitat would not become an Area of Particular Concern, based
on public comment and further review of the relevant regulation
(Coastal Resource Management Regulations, as amended 1990). For this
reason, the designation of critical habitat would not increase the
number of Minor Permit actions under the Coastal Resource Management
Office's jurisdiction.
(79) Comment: One commenter stated that if the critical habitat
designation forces the Air Force to relocate its mission, the impact to
Guam's economy would be huge.
Our Response: Estimated costs to relocate Air Force mission
requirements were provided by the Air Force in a letter during the DEA
public comment period (Defoliart, in litt., 2003). These costs are
estimated to be $2.6 billion and exclude the additional costs for
``bedding down'' new missions at the receiving installation. As
demonstrated by the information provided by the commenter, relocation
of mission requirements would be costly, would impact the mission of
the Air Force and national security, and would impact Guam's economy.
However, based on the information received to date, there is no reason
to believe that proposed critical habitat would cause the Air Force to
relocate or cause its mission to be impeded. Section 6.3.1.3 of the DEA
identifies potential impacts of critical habitat designation (as
proposed) on Air Force activities, however, Air Force lands have been
excluded from this final critical habitat designation (see ``Analysis
of Air Force Lands Under Section 4(a)(3)'' for more details).
(80) Comment: One commenter observed that the economic analysis
does not consider or quantify the benefits of critical habitat and that
the technology and expertise for quantifying these benefits and
conducting this analysis exist.
Our Response: As mentioned in section 6.5.2 of the DEA, the
development of quantitative estimates associated with the benefits of
critical habitat is impeded by the lack of available studies and
information relating to the size and value of beneficial changes that
are likely to occur as a result of listing a species or designating
critical habitat. However, several categories of benefits were
identified and discussed in the DEA, including use value, existence
value, recreation benefits, overall ecosystem health, ecosystem
preservation values, and other benefits.
The commenter suggested that a 1999 analysis by University of
Hawaii economists on the total value of environmental service provided
by Oahu's Koolau Mountains be used as a model for estimating the value
of the environmental benefits provided by critical habitat (Kaiser et
al. 1999). This document was, in fact, used in the DEA as a resource
for concepts and for identifying original research on certain subjects,
but it has limited applicability for valuing the benefits of the
critical habitat designation for several reasons. First, the University
of Hawaii study had a different purpose, which was to estimate the
total value of
[[Page 62973]]
environmental benefits provided by the entire Koolau Mountains on the
island of Oahu. Many of the assumptions and much of the analysis in the
University of Hawaii study are not transferable to the economic
analysis for the critical habitat on Guam and Rota. For example, the
Koolau Mountains were evaluated as a contiguous area, whereas the
intended critical habitat designation is composed of several separate
areas on two islands. The value of water recharge in the University of
Hawaii study reflected projected water supply and demand conditions on
Oahu, an island which is almost three times the size of Guam and 18
times the size of Rota, with a population almost six times that of the
Guam and 47 times that of Rota. Also, the University of Hawaii benefit
analysis of reducing soil runoff is unique to three valleys that drain
through partially channelized streams in urban areas into the man-made
Ala Wai Canal. Because this canal was designed with inadequate flushing
from stream or ocean currents, it functions as an unintended settling
basin and must be dredged periodically. Similar conditions are not
present on either Guam or Rota.
(81) Comment: One commenter stated a belief that it is
inappropriate to include existence and recreational values in the
calculation of the economic impacts of the critical habitat designation
on Rota because these values are imported from the U.S. mainland and
have no relevance on Rota where the Mariana crow is considered to be a
pest and has ``no commercial or cultural significance.''
Our Response: As stated in section 6.5.2 of the DEA, existence
values for endangered species are often calculated with willingness-to-
pay studies. These studies estimate the public's willingness to pay to
preserve a species or enhance a species' population above and beyond
any expected direct use. As such, people who do not live on Guam or
Rota and who have never seen the Mariana fruit bat, Guam Micronesian
kingfisher, and Mariana crow may still value the existence of these
species. The DEA identified several existing willingness-to-pay studies
that are closely applicable to the values associated with protecting
the Mariana fruit bat, Guam Micronesian kingfisher, and Mariana crow.
However, these study cases are not sufficiently comparable to the
policy cases to consider benefits transfer. Therefore, neither the DEA
nor the DEA addendum provide quantitative estimates of the existence
values of the species.
Recreation benefits are mentioned in the DEA because protecting
critical habitat may result in preservation of habitat suitable for
other recreational uses, such as hiking, camping, and bird-watching.
Although some people may consider the Mariana crow to be a pest, there
may be recreational benefits associated with the protection of the
habitat for the Mariana crow. However, as stated in the DEA, because
data on the resultant increase in number or quality of trips are
unavailable, such estimated recreational benefits cannot be quantified.
(82) Comment: One commenter stated that the cost analysis in the
DEA of the designation on military lands is based on the assumption
that if critical habitat is designated, the Department of Defense would
pull out of the cooperative agreement that created the overlay National
Wildlife Refuge and will cease to conduct conservation projects on
their lands.
Our Response: As provided by the terms of the Cooperative
Agreement, the Navy and Air Force have retained the option of
unilaterally withdrawing any or all of their lands from the Guam
National Wildlife Refuge in the event that any of these lands on Guam
are designated critical habitat. The possibility of the Navy pulling
out of the cooperative agreement was presented under the indirect
effects section of the DEA based on input we received from Navy
representatives at that time. The Air Force did not identify any
potential indirect costs that would result from critical habitat
designation, or state any intention to withdraw from the overlay refuge
if critical habitat were designated on their lands. The indirect
effects of the Navy's potential withdrawal from the refuge were
discussed, but not quantified, as stated in section 6.3.1.1 of the
report. Therefore, the cost analysis of designation on Navy and Air
Force lands was based on quantifiable impacts on specific military
activities, not, as the commenter suggests, on the broad assumption
that the military would pull out of the refuge overlay agreement and
cease to conduct conservation projects. Furthermore, it is not clear
how or whether the potential withdrawal of the military from the
overlay refuge would affect the economic impact of critical habitat
designation. Finally, Air Force and Navy lands were excluded from
critical habitat designation pursuant to sections 4(a)(3) and/or
4(b)(2) of the Act (see the ``Exclusions from Critical Habitat''
section).
(83) Comment: One commenter stated that the cost analysis of the
designation on military lands is based on unsubstantiated claims that
critical habitat will impair military training and readiness. A recent
General Accounting Office (GAO) report has found that this is not
likely the case.
Our Response: The referenced GAO report (GAO-02-614), which
surveyed military bases within the continental United States, states
that readiness data are insufficient to characterize the extent to
which encroachment (including endangered species habitat on military
installations) has affected training readiness. However, this report
and an April 2002 GAO report, ``Military Training: Limitations Exist
Overseas but Are Not Reflected in Readiness Reporting'' (GAO-02-525),
both acknowledge that although readiness data do not comprehensively
document the extent of training range capabilities or costs associated
with encroachment, military officials report that they have lost
training range capabilities because of encroachment. As stated in GAO-
02-525, ``For the most part, military officials * * * and office of the
secretary of defense officials told us that the unit readiness
reporting is subjective and is not a vehicle to report training
shortfalls and the associated limitations or restrictions.''
In the absence of sufficient quantitative data to support or refute
the military officials' claims that critical habitat would impair
training and readiness, the DEA relied upon military base
representatives for input. During the public review period, additional
military input supported the importance of the bases for national
security and described the cost implications of forcing missions to
relocate. The Air Force's Headquarters, Pacific Air Force, provided
specific examples of the strategic significance of Guam's proximity to
areas of potential conflict, e.g., dramatic decreases in time and
distance required to fly to Seoul and Taiwan from Guam (compared to
Minot Air Force Base in North Dakota), and concluded that Andersen Air
Force Base is ``crucial'' to the Air Force's implementation of the new
defense strategy. The Navy's Deputy Chief of Naval Operations (Fleet
Readiness and Logistics) stated that the Navy is ``extremely concerned
that a critical habitat designation may curtail or prevent continued
use of those areas for military purposes, void taxpayer investments in
infrastructure to support military activities at these locations, and
require costly investment elsewhere to accomplish training
requirements.'' Based on a review of the GAO-02-614 and information
obtained from military representatives, the information regarding
military training and readiness in the DEA remains appropriate.
[[Page 62974]]
(84) Comment: One commenter claimed that the need for development
of Rota's infrastructure, and the potential for critical habitat to
impede that development, has been overstated. The population of the
island is small. Other than a golf course and retirement housing,
little land is needed for infrastructure improvements. Because of the
need for local permits and Federal permits, infrastructure development
projects take time to implement, with or without a critical habitat
designation. Furthermore, critical habitat is sufficiently flexible to
allow development to take place.
Our Response: A comprehensive and systematic approach was used to
identify development activities likely to occur over the 10-year
assessment period. The data collection methods are presented in Chapter
5 of the DEA. In addition, further analysis of potential private
development activities within critical habitat was conducted to
determine private land development activities that may have a Federal
nexus because of a variety of Federal funding sources. The results of
this analysis are provided in section 3 of the DEA addendum. Planned
development projects that could be affected by proposed critical
habitat on Rota within the 10-year assessment period, as identified in
the DEA and DEA addendum, include: improvements at the Rota
International Airport, roadway improvements to Route 100 on Rota,
roadway improvements to Routes 5 and 12 on Guam, development of the
Marianas Agupa Golf Course, development of a solid waste disposal
landfill, development of an affordable housing project on CLTC lands,
two new construction projects using VA home loans, and two new
construction projects using U.S. Department of Agriculture Rural
Development loans. We agree that development may still take place on
both public and private lands within critical habitat, with the
potential associated section 7 costs identified in the DEA and DEA
addendum.
(85) Comment: One commenter stated that critical habitat will
result in the loss of funds and other resources that presently are used
for conservation because these resources will be needed to complete
section 7 consultations triggered by actions proposed within critical
habitat.
Our Response: The cooperative agreements between the Service and
the military require that the military conduct consultation under
Section 7 of the Act in areas identified as essential to the Mariana
fruit bat, Mariana crow, and Guam Micronesian kingfisher, even if these
species are extirpated from the affected area (but are not extinct).
Therefore, the costs associated with consultation on critical habitat
would be difficult to separate from those already borne by the military
pursuant to the terms of their cooperative agreement with the Service.
Summary of Changes From the Proposed Rule
Based partly on a review of public comments received on the
proposed determinations of critical habitat and partly on additional
biological examination of several areas, we have reevaluated our
proposed designations. We made revisions to the unit boundaries based
on information that indicated that the primary constituent elements
were not present in certain portions of the proposed units, that
certain changes in land use had occurred on lands within the proposed
critical habitat that would preclude those areas from supporting the
primary constituent elements, or that the areas were not essential to
the conservation of the species in question. We also revised the unit
boundaries based on mapping errors that were made in the proposed rule.
In addition, Andersen Air Force Base lands were excluded under Section
318 of the fiscal year 2004 National Defense Authorization Act. Navy
lands, Government of Guam lands, and private lands on Guam were
excluded under section 4(b)(2) of the Act, as amended by Section 318.
A brief summary of the modifications made to each unit for each
species is given below.
Mariana Fruit Bat
Unit A: Northern Guam
A total of 14,041 ac (5,681 ha) was removed or excluded from
critical habitat designation in this unit. On COMNAVMARIANAS
Communications Annex, we removed 169 ac (68 ha) from along the boundary
of this unit that are mowed areas and do not contain the primary
constituent elements required by the Mariana fruit bat. We also removed
95 ac (38 ha) along the eastern coast of Guam because these areas were
cleared for housing and do not contain the primary constituent elements
required by the Mariana fruit bat. Along the northern coast, we removed
100 ac (40 ha) of beach belonging to Andersen Air Force Base, because
this area does not contain the primary constituent elements required by
the Mariana fruit bat. Along the northern and western boundary of the
unit, we removed 237 ac (96 ha) of private land that contain some or
all of the primary constituent elements, but we believe these areas are
not essential to the conservation of the Mariana fruit bat. We also
modified the boundary around the Guam National Wildlife Refuge to
include 83 ac (33 ha) of Service-owned land that had not been included
in the proposed rule due to a mapping error.
Finally, Air Force, Navy, and Government of Guam lands were
excluded from critical habitat designation in this unit under sections
4(a)(3) and/or 4(b)(2) of the Act, as amended, for the reasons
described earlier in the sections entitled ``Exclusions from Critical
Habitat.'' Exclusion of Air Force lands resulted in the subtraction of
10,838 ac (4,386 ha) from designated critical habitat in northern Guam.
Exclusion of Navy lands resulted in a subtraction of 962 ac (389 ha)
from designated critical habitat in northern Guam. Exclusion of
Government of Guam lands resulted in a subtraction of 1,640 ac (664 ha)
from designated critical habitat in northern Guam.
These modifications resulted in the reduction of critical habitat
in the unit from 14,338 ac (5,803 ha) to approximately 376 ac (152 ha).
This unit is the only designated unit for the Mariana fruit bat on Guam
and has been renamed the ``Mariana Fruit Bat Unit'' (see ``Critical
Habitat Designation'' and ``Unit B: Southern Guam'' below for
additional information).
Unit B: Southern Guam
A total of 10,464 ac (4,234 ha) was removed or excluded from
critical habitat designation in this unit. On COMNAVMARIANAS Ordnance
Annex, we removed 139 ac (57 ha) along the northern boundary of the
unit because it contains buildings and mowed areas and does not contain
the primary constituent elements for the Mariana fruit bat. We also
removed 18 ac (7 ha) of private land from the eastern boundary of the
unit that does contain the primary constituent elements but is not
essential to the conservation of the Mariana fruit bat.
In addition, all Navy, Government of Guam, and private lands were
excluded from critical habitat designation for the reasons described
earlier in the sections entitled ``Exclusions from Critical Habitat.''
Exclusion of Navy lands resulted in the subtraction of 7,015 ac (2,839
ha) from designated critical habitat in southern Guam. Exclusion of
Government of Guam lands resulted in the subtraction of 1,349 ac (546
ha) from designated critical habitat in southern Guam. Exclusion of
private lands resulted in the subtraction of 1,941 ac
[[Page 62975]]
(785 ha) from designated critical habitat in southern Guam.
These modifications resulted in the removal of this unit from
critical habitat. Critical habitat for the Mariana fruit bat on Guam is
now in one unit in northern Guam called the ``Mariana Fruit Bat Unit''
(see ``Critical Habitat Designation'' for additional information).
Mariana Crow
Unit A: Northern Guam
A total of 13,772 ac (5,587 ha) was removed or excluded from
critical habitat designation in this unit. On COMNAVMARIANAS
Communications Annex, we removed 169 ac (68 ha) from along the boundary
of this unit that are mowed areas and do not contain the primary
constituent elements required by the Mariana crow. On Andersen Air
Force Base we removed 100 ac (40 ha) of beach along the northern coast
because this area does not contain the primary constituent elements
required by the Mariana crow. Along the western and northern boundaries
of the unit, we removed 99 ac (40 ha) of private land that do contain
some or all of the primary constituent elements, but are not essential
to the conservation of the Mariana crow. We also modified the boundary
around the Guam National Wildlife Refuge to include 53 ac (33 ha) that
had not been included in the proposed rule due to a mapping error.
Finally, Air Force, Navy, and Government of Guam lands were
excluded from critical habitat designation in this unit under sections
4(a)(3) and/or 4(b)(2) of the Act, as amended, for the reasons
described earlier in the section entitled ``Exclusions from Critical
Habitat.'' Exclusion of Air Force lands resulted in the subtraction of
10,838 ac (4,386 ha) from designated critical habitat in northern Guam.
Exclusion of Navy lands resulted in a subtraction of 926 ac (389 ha)
from designated critical habitat in northern Guam. Exclusion of
Government of Guam lands resulted in a subtraction of 1,419 ac (575 ha)
from designated critical habitat in northern Guam.
These modifications resulted in the reduction of critical habitat
in the unit from 12,540 ac (5,075 ha) to approximately 376 ac (152 ha).
This unit is now the only designated critical habitat for the Mariana
crow on Guam (see ``Critical Habitat Designation'' and ``Unit B:
Southern Guam'' below for additional information).
Unit B: Southern Guam
A total of 10,464 ac (4,234 ha) was removed or excluded from
critical habitat designation in this unit. On COMNAVMARIANAS Ordnance
Annex, we removed 139 ac (57 ha) along the northern boundary of the
unit because it contains buildings and mowed areas and does not contain
the primary constituent elements for the Mariana crow. We also removed
18 ac (7 ha) of private land from the eastern boundary of the unit that
does contain the primary constituent elements, but we believe this area
is not essential to the conservation of the Mariana crow.
Finally, all Navy, Government of Guam, and private lands were
excluded from critical habitat designation for the reasons described
earlier in the sections entitled ``Exclusions from Critical Habitat.''
Exclusion of Navy lands resulted in the subtraction of 7,015 ac (2,839
ha) from designated critical habitat in southern Guam. Exclusion of
Government of Guam lands resulted in the subtraction of 1,349 ac (546
ha) from designated critical habitat in southern Guam. Exclusion of
private lands resulted in the subtraction of 1,941 ac (785 ha) from
designated critical habitat in southern Guam.
These modifications resulted in the removal of this unit from
critical habitat designation. Critical habitat for the Mariana crow on
Guam was only designated in northern Guam in Unit A (see ``Critical
Habitat Designation'' for additional information).
Unit C: Rota
A total of 49 ac (20 ha) was removed for biological reasons from
critical habitat designation in this unit. We removed 42 ac (17 ha) of
private land from this unit because we found these areas are cleared
and do not contain the primary constituent elements required by the
Mariana crow. We also removed 7 ac (3 ha) of private land from the
boundary of the unit because this area is not essential to the
conservation of the Mariana crow. These modifications resulted in the
reduction of critical habitat in the unit from 6,084 ac (2,462 ha) to
6,035 ac (2,442 ha). This unit is now divided into two separate
subunits and has been renamed ``Unit B'' (see ``Critical Habitat
Designation'' for additional information).
Guam Micronesian Kingfisher
Unit A: Northern Guam
A total of 14,041 ac (5,681 ha) was removed or excluded from
critical habitat designation in this unit. On COMNAVMARIANAS
Communications Annex, we removed 169 ac (68 ha) from along the boundary
of this unit that are mowed areas and do not contain the primary
constituent elements required by the Guam Micronesian kingfisher. We
also removed 95 ac (38 ha) of private land along the eastern coast of
Guam because these are cleared for housing and do not contain the
primary constituent elements required by the Guam Micronesian
kingfisher. Along the northern coast, we removed 100 ac (40 ha) of
beach belonging to Andersen Air Force Base because this area does not
contain the primary constituent elements required by the Guam
Micronesian kingfisher. Along the northern and western boundary of the
unit, we removed 237 ac (96 ha) of private land that do contain some or
all of the primary constituent elements, but are not essential to the
conservation of the Guam Micronesian kingfisher. We also modified the
boundary around the Guam National Wildlife Refuge to include 83 ac (33
ha) of Service-owned lands that had not been included in the proposed
rule due to a mapping error.
Finally, all Air Force, Navy, and Government of Guam lands were
excluded from critical habitat designation in this unit under sections
4(a)(3) and/or 4(b)(2) of the Act, as amended, for the reasons
described earlier in the sections entitled ``Exclusions from Critical
Habitat.'' Exclusion of Air Force lands resulted in the subtraction of
10,838 ac (4,386 ha) from designated critical habitat in northern Guam.
Exclusion of Navy lands resulted in a subtraction of 962 ac (389 ha)
from designated critical habitat in northern Guam. Exclusion of
Government of Guam lands resulted in a subtraction of 1,640 ac (664 ha)
from critical habitat in northern Guam.
These modifications resulted in the reduction of critical habitat
in the unit from 14,338 ac (5,803 ha) to approximately 376 ac (152 ha).
This unit is now called the ``Guam Micronesian Kingfisher Unit``'' and
is the only designated critical habitat for the species on Guam (see
``Critical Habitat Designation'' and ``Unit B: Southern Guam'' below
for additional information).
Unit B: Southern Guam
A total of 10,464 ac (4,234 ha) was removed or excluded from
critical habitat designation in this unit. On COMNAVMARIANAS Ordnance
Annex we removed 139 ac (57 ha) along the northern boundary of the unit
because it contains buildings and mowed areas and does not contain the
primary constituent elements, and is not essential to the conservation
of the Guam Micronesian kingfisher. We also
[[Page 62976]]
removed 18 ac (7 ha) of private land from the eastern boundary of the
unit that does contain the primary constituent elements, but is not
essential to the conservation of the Guam Micronesian kingfisher.
Finally, all Navy, Government of Guam, and private lands were
excluded from critical habitat designation for the reasons described
earlier in the sections entitled ``Exclusions from Critical Habitat.''
Exclusion of Navy lands resulted in the subtraction of 7,015 ac (2,839
ha) from designated critical habitat in southern Guam. Exclusion of
Government of Guam lands resulted in the subtraction of 1,349 ac (546
ha) from designated critical habitat in southern Guam. Exclusion of
private lands resulted in the subtraction of 1,941 ac (785 ha) from
designated critical habitat in southern Guam.
These modifications resulted in the removal of this unit from
critical habitat designation. Designated critical habitat for the Guam
Micronesian kingfisher is found in northern Guam in the ``Guam
Micronesian Kingfisher Unit'' (see ``Critical Habitat Designation'' for
additional information).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is found to
be a significant regulatory action. Because of the Court Ordered
deadline, formal Office of Management and Budget (OMB) review was not
undertaken. We prepared an economic analysis of this action. The draft
economic analysis was made available for public comment and we
considered those comments during the preparation of this rule. The
economic analysis indicates that this rule will not have an annual
economic effect of $100 million or more; based on our economic
analysis, the annualized economic effects of this designation are
estimated to be $174,624. We have excluded much of these lands analyzed
in the draft economic analysis and addendum so the direct economic
impacts of the final designation is likely to be substantially lower
than this estimate. With approximately 90 percent reduction in acreage
and only refuge and Rota lands remaining, the cost may be closer to
$463,300 based on 10-year estimates.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The following discussion of the potential economic impacts of this
final rule reflects only the views of the Service. This discussion is
based upon the information regarding potential economic impact that is
available to the Service at this time. This analysis is for the
purposes of compliance with the Regulatory Flexibility Act and does not
reflect the position of the Service on the type of economic analysis
required by the judicial decision in New Mexico Cattle Growers Assn. v.
U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001).
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The Small Business Regulatory
Enforcement Fairness Act amended the Regulatory Flexibility Act to
require Federal agencies to provide a statement of the factual basis
for certifying that the rule will not have a significant economic
effect on a substantial number of small entities. The Small Business
Regulatory Enforcement Fairness Act also amended the Regulatory
Flexibility Act to require a certification statement. Based on current
information, the Service certifies that this final rule will not have a
significant effect on a substantial number of small entities.
The Small Business Regulatory Enforcement Fairness Act does not
explicitly define either ``substantial number'' or ``significant
economic impact.'' Consequently, to assess whether a ``substantial
number'' of small entities is affected by this designation, this
analysis considers the relative number of small entities likely to
sustain impacts in the area. Similarly, this analysis considers the
relative cost of compliance on the revenues/profit margins of small
entities in determining whether or not entities incur a ``significant
economic impact.'' Only small entities that are expected to be directly
affected by the designation are considered in this portion of the
analysis. This approach is consistent with several judicial opinions
related to the scope of the Regulatory Flexibility Act (Mid-Tex
Electric Co-Op, Inc. v. FERC and American Trucking Associations, Inc.
v. EPA).
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule would affect a substantial number of small
entities, we consider the number of small entities affected within
particular types of economic activities (e.g., housing development,
grazing, oil and gas production, timber harvesting, etc.). In
estimating the numbers of small entities potentially affected, we also
consider whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by critical habitat designation.
Designation of critical habitat only affects activities carried
out, authorized, or funded by Federal agencies; non-Federal activities
are not affected by the designation. In areas where the species are
present, Federal agencies are already required to consult with us under
section 7 of the Act on activities that they carry out, authorize, or
fund that may affect Mariana fruit bats, Mariana crows, and/or Guam
Micronesian kingfishers. When these critical habitat designations are
finalized, Federal agencies must also consult with us if their
activities may affect designated critical habitat. However, in areas
where the species are present, we do not believe this will result in
appreciable additional regulatory burdens on Federal agencies or their
applicants because consultation would already be required because of
the presence of the listed species.
Even if the duty to avoid adverse modification does not trigger
additional regulatory impacts in areas where the species is present,
designation of critical
[[Page 62977]]
habitat could result in an additional economic burden on small entities
due to the requirement to reinitiate formal consultation for ongoing
Federal activities. We have reviewed 209 informal consultations and 37
formal consultations conducted on the Mariana fruit bat, Mariana crow,
and Guam Micronesian kingfisher on Guam since these species were listed
in 1984. In addition, we reviewed nine informal consultations conducted
on the island of Rota, CNMI, since 1984. No formal consultations have
been conducted on Rota since the Mariana crow was listed. Consultations
on Federal grants to State wildlife programs, which do not affect small
entities, were not reviewed for this final rule. Seventy-seven of the
209 informal consultations on Guam and 3 of the 5 informal
consultations on Rota were conducted in response to requests for
technical assistance or species lists for different locations on Guam
and Rota. The majority of these requests were made by Federal agencies,
some on their behalf by private consultants or contractors. Of the 246
total consultations on Guam, 57 informal and 20 formal consultations
involved at least one of the species involved in this final rule. Of
the nine consultations on Rota, six involved the Mariana crow.
Of the 20 formal consultations on Guam, two may have involved a
small entity. Both of these concerned proposals by the Urunao Resort
Corporation to have contractors conduct topographic survey work on
private and Federal lands for a potential access road through Navy
property to private lands. The Mariana fruit bat and Mariana crow were
reported from the action areas. The biological opinions (Pacific
Islands Fish and Wildlife Office log numbers 1-2-90-F-027 and 1-2-91-F-
008) concluded that the proposed action would not result in jeopardy to
either species. The reasonable and prudent measures required in the
biological opinions to avoid or minimize incidental take of these
species did not include major modifications to the proposed action and
therefore did not place a significant economic burden on Urunao Resort
Corporation. We do not believe this constitutes a substantial number of
small entities (see earlier discussion on substantial number). Of the
remaining 18 formal consultations on Guam involving the Mariana fruit
bat, Mariana crow, and/or Guam Micronesian kingfisher, 10 were
conducted on behalf of the Air Force and 8 were conducted on behalf of
the Navy. In all of these consultations, the Service concluded that the
proposed actions would not result in jeopardy to these three listed
species.
Of the 57 informal consultations on Guam, one may have concerned a
small entity (private individuals, consulting firms, or nonprofit
organizations). The proposed action in this case, the gathering of a
large Chamorro family on the Guam National Wildlife Refuge, was
determined not likely to adversely affect listed species and was
subject only to minor restrictions under a special use permit for the
refuge. We do not believe this instance constitutes a substantial
number of small entities (see earlier discussion on substantial
number). Four informal consultations were conducted on behalf of
Government of Guam agencies. One action was determined not likely to
adversely affect listed species, and the other was determined to have
no effect on listed species. A third was determined not likely to
adversely modify the critical habitat proposed in 1991. The fourth
consultation on behalf of the Government of Guam concerned technical
assistance from the Service and resulted in no regulatory action by the
Service or economic burden on the Government of Guam. We conclude,
however, that the Government of Guam is not a small entity under the
Small Business Regulatory Enforcement Fairness Act.
Of the six informal consultations on Rota that concerned the
Mariana crow, none concerned a small entity, and all consultations were
conducted on behalf of the Government of the CNMI. Four of these
consultations were requests for technical assistance or species lists
and resulted in no regulatory action by the Service or economic burden
on the Government of the CNMI. The remaining two actions were
determined not likely to adversely affect the Mariana crow. We
concluded, however, that the Government of the CNMI is not a small
entity under the Small Business Regulatory Enforcement Fairness Act.
The remaining 52 informal consultations on Guam exclusively
involved the following Federal agencies: U.S. Air Force (27
consultations), U.S. Department of the Navy (14 consultations), U.S.
Department of Agriculture (4 consultations), U.S. Fish and Wildlife
Service (3 consultations), U.S. Army Corps of Engineers (2
consultations), U.S. Department of the Army (one consultation), and
Natural Resources Conservation Service (formally the Soil Conservation
Service) (one consultation). None of these agencies is a small entity
under the Small Business Regulatory Enforcement Fairness Act. Of these
consultations, seven included critical habitat proposed in 1991, and
these proposed actions were determined not likely to adversely modify
proposed critical habitat. Of the remaining 45 consultations, 38
concluded with our concurrence that the proposed action either would
have no effect on, or was not likely to adversely affect, listed
species; five consultations were responses to requests for either
species lists or technical assistance and did not conclude with a
regulatory determination; one concluded with a request by the Service
for more information; and one concluded with a determination that the
proposed action, Navy training maneuvers, was likely to adversely
affect the Mariana crow.
In areas where the species clearly are not present, designation of
critical habitat could trigger additional review of Federal activities
under section 7 of the Act that otherwise would not be required. The
majority of activities in the critical habitat areas for the Mariana
fruit bat, Mariana crow, and Guam Micronesian kingfisher that have
Federal involvement likely will concern the U.S. Navy or Air Force. As
mentioned above, however, only 77 of 246 informal consultations on Guam
completed under section 7 of the Act involved any of the species for
which critical habitat is being designated. As a result, we cannot
easily identify future consultations that may result from the listed
status of the species or the increment of additional consultations that
may be required by this critical habitat designation. Furthermore, a
large proportion of the critical habitat designation on Guam is
currently unoccupied by these species. Therefore, for the purposes of
this review and certification under the Regulatory Flexibility Act, we
are making the conservative assumption that any future consultations in
the area designated as critical habitat on Guam likely will result from
the critical habitat designations.
Of the total land area designated as critical habitat on Guam for
the Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher,
approximately 15 percent is private land, 21 percent is Government of
Guam land, and 64 percent is Federal land. Of the total land area
designated as critical habitat for the Mariana crow on Rota,
approximately 8 percent is private land and 92 percent is CNMI
Government land. Much of the land within the designated critical
habitat units has limited potential for development because of the
remote locations, lack of access, and rugged terrain of these lands. On
non-Federal lands, activities that lack Federal involvement would not
be affected by
[[Page 62978]]
the critical habitat designations. Activities of an economic nature
that are likely to occur on non-Federal lands in the area encompassed
by these designations consist of improvements to and construction of
roads, communications and tracking facilities, and other
infrastructure; residential and tourist-related development; ranching
and farming; and recreational use, such as camping, picnicking, game
hunting, and fishing. With the exception of communications and tracking
facilities improvements by the Federal Aviation Administration or the
Federal Communications Commission, road building or improvement by the
Federal Highway Administration, and water or sewer system development
by the Corps of Engineers these activities are unlikely to have Federal
involvement. On lands that are or may be in agricultural production,
the types of activities that might trigger a consultation include
irrigation ditch system projects that may require section 404
authorizations from the Corps of Engineers, and watershed management
and restoration projects sponsored by the Natural Resources
Conservation Service. However, Natural Resources Conservation Service
restoration projects typically are voluntary, and the irrigation ditch
system projects within lands that are in agricultural production are
rare and may affect only a small percentage of the small entities
within these critical habitat designations. Therefore, analysis of
currently available information indicates that the final rule would not
affect a substantial number of small entities. We are not aware of any
commercial activities on the Federal lands included in these critical
habitat designations.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements. First, if we
conclude, in a biological opinion, that a proposed action is likely to
jeopardize the continued existence of a species or adversely modify its
critical habitat, we can offer ``reasonable and prudent alternatives.''
Reasonable and prudent alternatives are alternative actions that can be
implemented in a manner consistent with the scope of the Federal
agency's legal authority and jurisdiction, that are economically and
technologically feasible, and that would avoid jeopardizing the
continued existence of listed species or would result in adverse
modification of critical habitat. A Federal agency and an applicant may
elect to implement a reasonable and prudent alternative associated with
a biological opinion that has found jeopardy or adverse modification of
critical habitat. An agency or applicant could alternatively choose to
seek an exemption from the requirements of the Act or proceed without
implementing the reasonable and prudent alternative. However, unless an
exemption were obtained, the Federal agency or applicant would be at
risk of violating section 7(a)(2) of the Act if it chose to proceed
without implementing the reasonable and prudent alternative(s).
Secondly, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed animal species, we may
identify reasonable and prudent measures designed to minimize the
amount or extent of incidental take anticipated to result from the
project and require the Federal agency or applicant to implement such
measures through nondiscretionary terms and conditions. We may also
identify discretionary conservation recommendations designed to
minimize or avoid the adverse effects of a proposed action on listed
species or critical habitat, help implement recovery plans, or gather
information that could contribute to the long-term conservation of the
species.
Based on our experience with section 7 consultations for all listed
species, virtually all projects--including those that, in their initial
proposed form, would result in jeopardy or adverse modification
determinations in section 7 consultations--can be implemented
successfully with, at most, the adoption of reasonable and prudent
alternatives. Furthermore, these measures must be economically
feasible, consistent with the intended purpose of the action, and
within the scope of authority of the Federal agency involved in the
consultation (see 50 CFR 404.2, definition of reasonable and prudent
alternative). Based on our consultation history, we can describe the
general kinds of actions that may be identified in future reasonable
and prudent alternatives. These are based on our understanding of the
needs of the species and the threats they face, especially as described
in the final listing rule and in this critical habitat designation, as
well as our experience with the listed species in Guam and Rota. The
kinds of actions that may be included in future reasonable and prudent
alternatives include, but are not limited to, management of competing
nonnative species and predators, restoration of degraded habitat,
construction of protective fencing, and regular monitoring. Therefore,
such measures are not likely to result in a significant economic impact
to a substantial number of small entities.
As required under section 4(b)(2) of the Act, we conducted an
analysis of the potential economic and other impacts of this critical
habitat designation, and we made this analysis available for public
review and comment before finalizing these designations.
In summary, we have considered whether this final rule would result
in a significant economic effect on a substantial number of small
entities. Currently available information indicates it would not affect
a substantial number of small entities. None of the lands designated as
critical habitat on Guam are on Government of Guam lands. In addition,
approximately 92 percent of the lands designated as critical habitat on
Rota are on Government of the CNMI lands. The Territory of Guam and
CNMI are not small entities under the Small Business Regulatory
Enforcement Fairness Act. None of the lands designated as critical
habitat on Guam and 8 percent of lands proposed as critical habitat on
Rota are on private lands. As discussed earlier, many of the actions
likely to occur on the private land parcels included in this proposal
are not likely to require any Federal authorization. In the remaining
areas, section 7 application, the only trigger for regulatory impact
under this rule, largely would be limited to a subset of the area
designated. The most likely future section 7 consultations resulting
from this rule would be for informal consultations on actions proposed
by the military, federally funded land and water conservation projects,
species-specific surveys and research projects, and watershed
management and restoration projects sponsored by the Natural Resources
Conservation Service. These consultations likely would occur on only a
subset of the total number of parcels and, therefore, are not likely to
affect a substantial number of small entities. This rule would result
in project modifications only when proposed Federal activities would
destroy or adversely modify critical habitat. While this may occur, it
is not expected frequently enough to affect a substantial number of
small entities. Even if it did occur, we would not expect it to result
in a significant economic impact, as the measures included in
reasonable and prudent alternatives must be economically feasible and
consistent with the proposed action. Thus, currently available
information indicates that the designation of critical habitat for the
Mariana fruit bat, Mariana crow, and Guam Micronesian kingfisher will
not have a significant economic impact on
[[Page 62979]]
a substantial number of small entities, and an initial regulatory
flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
Under the Small Business Regulatory Enforcement Fairness Act (5
U.S.C. 801 et seq.), this rule is not a major rule. Our detailed
assessment of the economic effects of this designation are described in
the draft economic analysis and the final addendum to the economic
analysis. Based on the effects identified in these documents, we
believe that this rule will not have an effect on the economy of $100
million or more, will not cause a major increase in costs or prices for
consumers, and will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. Please refer to the final addendum to the economic
analysis for a discussion of the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211, on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. Though current
information indicates this final rule would be a significant regulatory
action under Executive Order 12866, it is not expected to significantly
affect energy supplies, distribution, or use. Therefore, this action is
not a significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
August 25, 2000 et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan does not appear to be
required. Small governments would be affected only to the extent that
any programs having Federal funds, permits, or other authorized
activities would have to ensure that their actions will not adversely
affect the critical habitat. However, as discussed above, these actions
are currently subject to similar restrictions through the listing
protections of the species, and further restrictions are not
anticipated to result from critical habitat designation of occupied
areas. In our economic analysis, we evaluated the impact of designating
unoccupied areas where section 7 consultations would not have occurred
but for the critical habitat designation.
(b) This rule will not produce on State, local, or Tribal
governments or the private sector a Federal mandate of $100 million or
greater in any year, so it does not meet the criteria for a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have preliminarily analyzed the potential takings
implications of the designating critical habitat in a preliminary
takings implication assessment, which indicates that this rule would
not pose significant takings implications.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. As discussed above, the designation of critical habitat in
areas currently occupied by the Mariana fruit bat and Mariana crow and
in areas unoccupied by these species and the Guam Micronesian
kingfisher would have little incremental impact on the Government of
Guam or the CNMI and their activities. The designations may have some
benefit to the Government of Guam and the CNMI in that the areas
essential to the conservation of these species are more clearly
defined, and the primary constituent elements of the habitat necessary
to the survival of these species are identified. While this definition
and identification does not alter where and what Federally sponsored
activities may occur, it may assist the Government of Guam and the CNMI
in long-range planning rather than waiting for case-by-case section 7
consultation to occur.
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. The rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of the Mariana fruit bat, Guam
Micronesian kingfisher, and Mariana crow.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid Office of Management and Budget
control number.
National Environmental Policy Act
We have determined that we do not have to prepare an Environmental
Assessment and/or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Act, as amended. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations With Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis. The designated critical
habitat on Guam and Rota for the Mariana fruit bat, Guam Micronesian
kingfisher, and Mariana crow does not contain any Tribal lands or lands
that we have identified as impacting Tribal trust resources.
References Cited
A complete list of all references cited in this final rule is
available upon request from our Pacific Islands Fish and Wildlife
Office (see ADDRESSES section).
Authors
This document was drafted by the Pacific Islands Fish and Wildlife
Office with assistance from the U.S. Department of the Interior (see
ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
[[Page 62980]]
Regulation Promulgation
0
Accordingly, part 17, subchapter B of chapter I, title 50 of the Code
of Federal Regulations is amended as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.11(h), the entries for ``Bat, Mariana fruit'' under
``MAMMALS,'' ``Kingfisher, Guam Micronesian'' under ``BIRDS,'' and
``Crow, Mariana'' under ``BIRDS'' are revised to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Bat, Mariana fruit (=Mariana Pteropus mariannus Western Pacific Guam.............. E 156 17.95(a) NA
flying fox). mariannus. Ocean USA (Guam,
Commonwealth of
the Northern
Mariana Islands).
* * * * * * *
Birds
* * * * * * *
Crow, Mariana................... Corvus kubaryi..... Western Pacific Entire............ E 156 17.95(b) NA
Ocean USA (Guam,
Rota).
* * * * * * *
Kingfisher, Guam Micronesian.... Halcyon cinnamomina Western Pacific Entire............ E 156 17.95(b) NA
cinnamomina. Ocean USA (Guam).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.95 by adding, in the same alphabetical order as these
species occur in Sec. 17.11(h):
0
a. In paragraph (a), critical habitat for the Mariana fruit bat
(Pteropus mariannus mariannus) as set forth below; and
0
b. In paragraph (b), critical habitat for the Mariana crow (Corvus
kubaryi) and Guam Micronesian kingfisher (Halcyon cinnamomina
cinnamomina) as set forth below.
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Mariana Fruit Bat (Pteropus mariannus mariannus)
(1) The critical habitat unit for the Mariana fruit bat is depicted
for the Territory of Guam on the maps below.
(2) Within this area, the primary constituent elements required by
the Mariana fruit bat for the biological needs of foraging, sheltering,
roosting, and rearing of young are found in areas supporting limestone,
secondary, ravine, swamp, agricultural, and coastal forests composed of
native or introduced plant species. These forest types provide the
primary constituent elements of:
(i) Plant species used for foraging, such as Artocarpus sp.
(breadfruit), Carica papaya (papaya), Cycas circinalis (fadang), Ficus
spp. (fig), Pandanus tectorius (kafu), Cocos nucifera (coconut palm),
and Terminalia catappa (talisai); and
(ii) Remote locations, often within 328 ft (100 m) of clifflines
that are 260 to 590 ft (80 to 100 m) tall, with limited exposure to
human disturbance; land that contains mature fig, Mammea odorata
(chopak), Casuarina equisetifolia (gago), Macaranga thompsonii
(pengua), Guettarda speciosa (panao), Neisosperma oppositifolia
(fagot), and other tree species that are used for roosting and
breeding.
(3) Critical habitat does not include existing features and
structures within the boundaries of the mapped units, such as
buildings, roads, aqueducts, antennas, water tanks, agricultural
fields, paved areas, lawns, and other urban landscaped areas not
containing one or more of the primary constituent elements.
(4) The critical habitat unit is described below. Coordinates are
in UTM Zone 55 with units in meters using North American Datum of 1983
(NAD83)/World Geodetic System 1984 (WGS 84).
(i) Note: Map 1--General Location of the Mariana Fruit Bat Unit
follows:
BILLING CODE 4310-55-P
[[Page 62981]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.000
(ii) Guam, Mariana fruit bat (376 ac; 152 ha).
(A) Unit consists of the following nine boundary points: 267358,
1509113; 267338, 1509107; 267277, 1509113; 271077, 1508881; 271071,
1508878; 270766, 1509058; 269030, 1510105; 268659, 1510129; 267697,
1509376.
(B) Note: Map 2 showing Mariana Fruit Bat Unit follows:
[[Page 62982]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.001
* * * * *
(b) Birds.
* * * * *
Mariana Crow (Corvus kubaryi)
(1) Critical habitat units for the Mariana crow are depicted for
the Territory of Guam and the island of Rota, Commonwealth of the
Northern Mariana Islands, on the maps below.
(2) The primary constituent elements required by the Mariana crow
for the biological needs of foraging, sheltering, roosting, nesting,
and rearing of young are found in areas that support limestone,
secondary, ravine, swamp, agricultural, and coastal forests composed of
native and introduced plant species. These forest types provide the
primary constituent elements of:
(i) Emergent trees and subcanopy trees with dense cover for
breeding, such as Neisosperma oppositifolia (fagot), Macaranga
thompsonii (pengua), Intsia bijuga (ifit), Premna obtusifolia (ahgao),
Eugenia reinwardtiana (aabang), Ficus spp. (fig), Elaeocarpus joga
(yoga), and Tristiropsis obtusangula (faniok);
(ii) Sufficient area of predominantly native forest to allow
nesting at least 950 ft (290 m) from the nearest road and 203 ft (62 m)
from the nearest forest edge and to support Mariana crow breeding
territories (approximately 30 to 91 ac (12 to 37 ha)) and foraging
areas for nonbreeding juvenile crows; and
(iii) Standing dead trees and plant species for foraging such as
Aglaia mariannensis (maypunayo), Artocarpus spp. (breadfruit), Cocos
nucifera (coconut palm), fagot, Hibiscus tiliaceus (pago), ifit,
Leucaena spp. (tangantangan), Ochrosia mariannensis (langiti), Pandanus
tectorius (kafu), ahgao, fig, and joga.
(3) Critical habitat does not include existing features and
structures within the boundaries of the mapped units, such as
buildings, roads, aqueducts, antennas, water tanks, agricultural
fields, paved areas, lawns, and other urban landscaped areas not
containing one or more of the primary constituent elements.
(4) Critical habitat units are described below. Coordinates are in
UTM Zone 55 with units in meters using North American Datum of 1983
(NAD83)/World Geodetic System 1984 (WGS 84).
(i) Note: Map 1--General Locations of Units for the Mariana Crow
follows:
[[Page 62983]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.002
(ii) Guam, Mariana crow--Unit A (376 ac; 152 ha):
(A) Unit A consists of the following nine boundary points: 267358,
1509113; 267338, 1509107; 267277, 1509113; 271077, 1508881; 271071,
1508878; 270766, 1509058; 269030, 1510105; 268659, 1510129; 267697,
1509376.
(B) Note: Map 2 showing Unit A for Mariana crow follows:
[[Page 62984]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.003
BILLING CODE 4310-55-C
(iii) Rota, Mariana crow--Unit B (6,033 ac; 2,442 ha):
(A) Subunit B-1 (5,668 ac; 2,294 ha) consists of the following 659
boundary points: 309251, 1569048; 309301, 1569048; 309410, 1569197;
309423, 1569292; 309304, 1569302; 309319, 1569585; 309357, 1569581;
309355, 1569603; 309339, 1569952; 309301, 1569932; 309216, 1570065;
309393, 1570214; 309698, 1570373; 309955, 1570475; 310209, 1570549;
310304, 1570532; 310484, 1570542; 310684, 1570556; 310823, 1570522;
310988, 1570530; 311235, 1570509; 311484, 1570490; 311620, 1570458;
311690, 1570436; 311807, 1570430; 312089, 1570412; 312189, 1570420;
312276, 1570402; 312346, 1570422; 312447, 1570412; 312539, 1570386;
312631, 1570349; 312734, 1570290; 312853, 1570230; 312913, 1570240;
313008, 1570257; 313130, 1570243; 313360, 1570238; 313441, 1570212;
313526, 1570211; 313598, 1570186; 313620, 1570151; 313479, 1570121;
313387, 1570081; 313382, 1570051; 313488, 1570070; 313550, 1570037;
313621, 1570022; 313704, 1570035; 313805, 1570011; 313843, 1569989;
313932, 1569975; 313986, 1569956; 314024, 1569934; 314116, 1569951;
314228, 1569932; 314336, 1569901; 314417, 1569879; 314482, 1569883;
314529, 1569853; 314810, 1569769; 315250, 1569625; 315296, 1569566;
315344, 1569506; 315399, 1569417; 315448, 1569341; 315469, 1569243;
315450, 1569091; 315369, 1568959; 315274, 1568839; 315222, 1568741;
315111, 1568557; 314963, 1568264; 314881, 1568159; 314832, 1568004;
314827, 1567899; 314786, 1567817; 314751, 1567701; 314753, 1567609;
314761, 1567278; 314810, 1567191; 314816, 1567112; 314767, 1567015;
314724, 1566831; 314648, 1566774; 314637, 1566722; 314642, 1566578;
314661, 1566508; 314564, 1566294; 314407, 1566085; 314241, 1565987;
314051, 1565865; 313943, 1565830; 313816, 1565771; 313656, 1565613;
313463, 1565456; 313333, 1565386; 313214, 1565304; 313076, 1565261;
312973, 1565250; 312916, 1565275; 312799, 1565334; 312734, 1565396;
312593, 1565475; 312311, 1565540; 312184, 1565554; 312037, 1565556;
311932, 1565551; 311799, 1565524; 311560, 1565537; 311433, 1565515;
311270, 1565453; 311140, 1565372; 311018, 1565334; 310901, 1565312;
310628, 1565283; 310525, 1565285; 310408, 1565293; 310272, 1565264;
310194, 1565226; 310132, 1565158; 310058, 1565104; 309912, 1564984;
309828, 1564908; 309734, 1564821; 309609, 1564707; 309492, 1564673;
309386, 1564583; 309213, 1564399; 309101, 1564206; 308944, 1564168;
308874, 1564128; 308849, 1564068; 308855, 1564017; 308852, 1563900;
308836, 1563803; 308814, 1563662; 308779, 1563537; 308779, 1563415;
308773, 1563328; 308806, 1563285; 308809, 1563212; 308863, 1563087;
308866, 1563011; 308814, 1562959; 308776, 1562905; 308741, 1562843;
308730, 1562778; 308665, 1562734; 308583, 1562702; 308535, 1562705;
308229, 1562564; 308080, 1562485; 307987, 1562390; 307929, 1562325;
307947, 1562257; 307914, 1562238; 307898, 1562192; 307833, 1562054;
307765, 1561919; 307705, 1561910; 307672, 1561903; 307667, 1561864;
307725, 1561834; 307724, 1561797; 307673, 1561715; 307535, 1561609;
307391, 1561447; 307228, 1561325; 307158, 1561333; 307012, 1561277;
306779,
[[Page 62985]]
1561394; 306697, 1561388; 306585, 1561380; 306533, 1561376; 306416,
1561344; 306336, 1561333; 306208, 1561331; 306166, 1561355; 306071,
1561420; 305925, 1561471; 305857, 1561483; 305811, 1561478; 305774,
1561437; 305748, 1561348; 305754, 1561287; 305801, 1561286; 305891,
1561175; 305848, 1561126; 305833, 1561094; 305864, 1561050; 305810,
1561036; 305734, 1561036; 305703, 1561001; 305674, 1560993; 305643,
1561014; 305580, 1560960; 305531, 1560933; 305492, 1560945; 305476,
1560972; 305452, 1560994; 305406, 1560991; 305370, 1561022; 305325,
1561047; 305327, 1561078; 305320, 1561099; 305274, 1561148; 305244,
1561170; 305238, 1561187; 305217, 1561215; 305156, 1561235; 305084,
1561233; 305054, 1561234; 305057, 1561263; 305042, 1561436; 305031,
1561528; 305041, 1561559; 305075, 1561668; 305091, 1561734; 305109,
1561806; 304845, 1561793; 304828, 1561737; 304789, 1561680; 304730,
1561636; 304682, 1561670; 304609, 1561726; 304537, 1561729; 304543,
1561756; 304426, 1561738; 304386, 1561662; 304317, 1561706; 304215,
1561666; 304099, 1561690; 304021, 1561789; 304088, 1561845; 304062,
1561922; 304177, 1561987; 304084, 1562103; 303922, 1562290; 303891,
1562318; 303867, 1562349; 303812, 1562414; 303739, 1562556; 303701,
1562508; 303676, 1562471; 303652, 1562522; 303575, 1562516; 303540,
1562487; 303542, 1562433; 303458, 1562411; 303434, 1562393; 303422,
1562453; 303317, 1562343; 303325, 1562313; 303302, 1562284; 303276,
1562282; 303240, 1562260; 303217, 1562242; 303167, 1562149; 303138,
1562129; 303111, 1562076; 303064, 1562084; 303038, 1562069; 302998,
1562079; 302959, 1562068; 302931, 1562030; 302862, 1562031; 302847,
1562023; 302823, 1562047; 302750, 1561973; 302708, 1561934; 302622,
1561980; 302539, 1561950; 302478, 1561980; 302420, 1561942; 302396,
1561965; 302352, 1562007; 302328, 1562056; 302315, 1562081; 302288,
1562112; 302262, 1562161; 302249, 1562185; 302232, 1562243; 302240,
1562278; 302258, 1562311; 302306, 1562355; 302355, 1562379; 302388,
1562398; 302411, 1562418; 302443, 1562470; 302456, 1562496; 302448,
1562537; 302402, 1562623; 302354, 1562673; 302366, 1562698; 302357,
1562716; 302346, 1562711; 302213, 1562810; 302163, 1562866; 302066,
1562946; 302056, 1562985; 302016, 1562990; 301955, 1563034; 301936,
1563076; 301882, 1563096; 301867, 1563093; 301822, 1563158; 301764,
1563244; 301677, 1563328; 301580, 1563379; 301518, 1563346; 301482,
1563379; 301494, 1563418; 301572, 1563445; 301601, 1563552; 301514,
1563608; 301374, 1563700; 301316, 1563740; 301140, 1563860; 300871,
1563988; 300689, 1564203; 300484, 1564307; 300566, 1564450; 300389,
1564638; 300472, 1564790; 300547, 1564683; 300696, 1564797; 300709,
1564865; 300724, 1564935; 300733, 1564985; 300802, 1564997; 300809,
1565065; 300824, 1565186; 300889, 1565296; 300927, 1565332; 301139,
1565378; 301166, 1565499; 301310, 1565554; 301340, 1565496; 301493,
1565470; 301602, 1565455; 301726, 1565444; 301852, 1565428; 301951,
1565444; 302023, 1565520; 302279, 1565526; 302273, 1565424; 302522,
1565388; 302630, 1565372; 302914, 1565332; 303045, 1565414; 303213,
1565437; 303283, 1565463; 303299, 1565568; 303353, 1565617; 303429,
1565705; 303551, 1565855; 303589, 1565862; 303662, 1565909; 303709,
1565943; 303699, 1565972; 303790, 1566116; 303814, 1566104; 303914,
1566165; 303961, 1566093; 304048, 1566137; 304008, 1566221; 303912,
1566211; 303876, 1566200; 303784, 1566149; 303710, 1566324; 303725,
1566359; 303889, 1566367; 303933, 1566390; 303906, 1566437; 303985,
1566502; 304046, 1566507; 304164, 1566279; 304241, 1566149; 304173,
1566049; 304116, 1566004; 304118, 1565967; 304208, 1565992; 304274,
1566044; 304578, 1566092; 304532, 1566129; 304531, 1566215; 304506,
1566303; 304729, 1566316; 304773, 1566274; 304902, 1566268; 304962,
1566265; 305087, 1566248; 305070, 1566133; 305108, 1566102; 305082,
1566065; 305145, 1565958; 305177, 1565915; 305235, 1565955; 305421,
1565782; 305452, 1565756; 305596, 1565779; 305683, 1565792; 305791,
1565838; 305893, 1565886; 306023, 1565952; 306135, 1566064; 306203,
1566119; 306251, 1566060; 306555, 1566080; 306664, 1566164; 306780,
1566264; 306834, 1566273; 307071, 1566336; 307106, 1566329; 307223,
1566324; 307307, 1566290; 307304, 1566221; 307397, 1566214; 307647,
1566199; 307865, 1566154; 307896, 1566125; 307979, 1566062; 308031,
1566047; 308267, 1565952; 308267, 1565855; 308315, 1565841; 308359,
1565901; 308432, 1565806; 308535, 1565518; 308562, 1565402; 308545,
1565397; 308590, 1565223; 308676, 1565242; 308700, 1565190; 308860,
1565315; 309031, 1565486; 309093, 1565494; 309270, 1565486; 309332,
1565415; 309354, 1565337; 309367, 1565161; 309389, 1565153; 309440,
1565161; 309492, 1565131; 309497, 1565052; 309524, 1565041; 309568,
1565055; 309587, 1565096; 309570, 1565131; 309579, 1565174; 309560,
1565223; 309573, 1565261; 309608, 1565299; 309578, 1565369; 309820,
1565486; 310001, 1565592; 310154, 1565639; 310358, 1565685; 310369,
1565665; 310596, 1565693; 310642, 1565657; 310700, 1565655; 310795,
1565726; 310937, 1565754; 310976, 1565767; 311272, 1565802; 311282,
1565660; 311408, 1565703; 311494, 1565731; 311616, 1565734; 311782,
1565734; 311858, 1565745; 312021, 1565735; 312100, 1565743; 312203,
1565779; 312306, 1565776; 312392, 1565841; 312409, 1565811; 312398,
1565757; 312439, 1565681; 312479, 1565670; 312550, 1565678; 312596,
1565678; 312601, 1565730; 312574, 1565776; 312533, 1565838; 312950,
1565848; 312983, 1565823; 313055, 1565882; 313070, 1565943; 313113,
1566024; 313256, 1566157; 313460, 1566223; 313496, 1566305; 313555,
1566443; 313631, 1566481; 313723, 1566467; 313799, 1566489; 313878,
1566481; 313921, 1566505; 313929, 1566540; 313902, 1566559; 313864,
1566557; 313826, 1566521; 313788, 1566543; 313790, 1566603; 313783,
1566660; 313813, 1566703; 313862, 1566757; 313832, 1566768; 313788,
1566749; 313704, 1566717; 313615, 1566668; 313569, 1566627; 313498,
1566527; 313478, 1566478; 313376, 1566382; 313136, 1566223; 313101,
1566254; 313101, 1566366; 313059, 1566413; 313016, 1566416; 312962,
1566413; 312874, 1566387; 312529, 1566471; 312501, 1566632; 312565,
1566815; 312693, 1566785; 312693, 1566897; 312807, 1566917; 312813,
1566980; 312802, 1567132; 312937, 1567124; 312932, 1566925; 312996,
1566927; 313121, 1567027; 313135, 1567050; 313217, 1566988; 313282,
1566936; 313292, 1566858; 313309, 1566787; 313283, 1566731; 313320,
1566717; 313355, 1566728; 313360, 1566782; 313360, 1566833; 313368,
1566863; 313401, 1566887; 313431, 1566898; 313466, 1566955; 313562,
1566958; 313585, 1567052; 313455, 1567137; 313195, 1567213; 313129,
1567244; 313040, 1567253; 312907, 1567257; 312912, 1567448; 312909,
1567729; 313019, 1567652; 313276, 1567581; 313810, 1567411; 313916,
1567327; 313989, 1567327; 314106, 1567237; 314184, 1567248; 314220,
1567360; 314192, 1567421; 314225, 1567533; 314192, 1567611; 314198,
1567679; 314314, 1567766; 314371, 1567831; 314390, 1567888; 314428,
1568004; 314439, 1568107; 314482, 1568185; 314507, 1568231; 314596,
[[Page 62986]]
1568270; 314697, 1568359; 314764, 1568357; 314813, 1568378; 314844,
1568493; 314973, 1568590; 314995, 1568674; 314984, 1568766; 315011,
1568915; 315022, 1569162; 314960, 1569181; 314905, 1569200; 314843,
1569278; 314840, 1569343; 314846, 1569390; 314819, 1569406; 314783,
1569398; 314759, 1569406; 314743, 1569444; 314637, 1569506; 314553,
1569541; 314539, 1569571; 314569, 1569612; 314396, 1569652; 314317,
1569655; 314081, 1569785; 313920, 1569813; 313815, 1569818; 313257,
1569826; 312876, 1569836; 312896, 1569509; 312912, 1569188; 312915,
1568976; 312795, 1569012; 312588, 1568997; 312425, 1569062; 312181,
1569041; 312012, 1569001; 311943, 1568999; 311943, 1568953; 311818,
1568948; 311731, 1568905; 311711, 1568926; 311675, 1568917; 311649,
1568994; 311602, 1569082; 311636, 1569226; 311450, 1569290; 311381,
1569290; 311312, 1569132; 311517, 1569055; 311570, 1568854; 311700,
1568716; 311662, 1568629; 311565, 1568547; 311369, 1568683; 311170,
1568731; 311065, 1568532; 310647, 1568535; 310624, 1568581; 310820,
1568660; 310795, 1568734; 311062, 1568848; 311027, 1569012; 310690,
1568967; 310551, 1568963; 310396, 1568926; 310236, 1568926; 310126,
1568927; 310120, 1568838; 310077, 1568824; 309975, 1568770; 309799,
1568773; 309579, 1568794; 309474, 1568767; 309396, 1568760; 309268,
1568888; 309286, 1568889; 309252, 1569042; 309251, 1569048.
(B) Excluding seven areas:
(1) Bounded by the following five points (7 ac; 3 ha): 309786,
1569596; 309800, 1569484; 310060, 1569596; 310059, 1569695; 310055,
1569695.
(2) Bounded by the following four points (13 ac; 5 ha): 310365,
1569567; 310716, 1569564; 310716, 1569718; 310366, 1569717.
(3) Bounded by the following 53 points (46 ac; 19 ha): 308686,
1564398; 308762, 1564422; 308791, 1564444; 308793, 1564466; 308784,
1564497; 308797, 1564525; 308821, 1564528; 308848, 1564503; 308874,
1564514; 308905, 1564532; 308955, 1564666; 308979, 1564736; 308994,
1564814; 309056, 1564845; 309090, 1564889; 309126, 1564869; 309248,
1564976; 309277, 1565027; 309288, 1565060; 309280, 1565083; 309271,
1565117; 309213, 1565113; 309170, 1565106; 309132, 1565058; 309100,
1565068; 309047, 1565112; 308992, 1565145; 308979, 1565217; 308948,
1565228; 308887, 1565176; 308883, 1565150; 308900, 1565075; 308876,
1564990; 308839, 1564994; 308821, 1564996; 308791, 1564924; 308813,
1564898; 308839, 1564906; 308870, 1564928; 308878, 1564915; 308808,
1564760; 308756, 1564683; 308703, 1564628; 308672, 1564595; 308668,
1564571; 308677, 1564563; 308716, 1564574; 308718, 1564560; 308673,
1564489; 308647, 1564459; 308607, 1564406; 308654, 1564386; 308671,
1564401.
(4) Bounded by the following 80 points (84 ac; 34 ha): 307624,
1562456; 307687, 1562504; 307700, 1562504; 307723, 1562493; 307768,
1562521; 307804, 1562511; 307827, 1562494; 307871, 1562552; 307897,
1562565; 307928, 1562565; 307943, 1562545; 307959, 1562519; 307976,
1562515; 308031, 1562572; 307996, 1562594; 307980, 1562618; 307978,
1562640; 307930, 1562655; 307908, 1562675; 307891, 1562697; 307891,
1562743; 307856, 1562771; 307851, 1562810; 307902, 1562852; 308068,
1562957; 308134, 1562964; 308164, 1562997; 308173, 1563049; 308204,
1563115; 308197, 1563150; 308171, 1563159; 308149, 1563172; 308158,
1563220; 308153, 1563290; 308153, 1563334; 308184, 1563347; 308234,
1563340; 308316, 1563418; 308398, 1563405; 308418, 1563437; 308367,
1563499; 308373, 1563676; 308215, 1563726; 308158, 1563576; 308126,
1563534; 308091, 1563547; 308052, 1563487; 308025, 1563486; 307965,
1563436; 307886, 1563373; 307872, 1563313; 307872, 1563199; 307896,
1563181; 307911, 1563141; 307871, 1563095; 307869, 1563073; 307904,
1563069; 307880, 1563003; 307862, 1563010; 307849, 1563025; 307803,
1563019; 307807, 1562964; 307792, 1562951; 307753, 1562946; 307713,
1562935; 307700, 1562911; 307704, 1562881; 307753, 1562828; 307768,
1562797; 307733, 1562745; 307731, 1562727; 307781, 1562683; 307729,
1562598; 307713, 1562633; 307689, 1562635; 307646, 1562613; 307495,
1562647; 307488, 1562556; 307488, 1562533; 307495, 1562490.
(5) Bounded by the following seven points (9 ac; 3 ha): 308109,
1562663; 308114, 1562663; 308280, 1562825; 308197, 1562937; 308066,
1562859; 308074, 1562799; 308043, 1562743.
(6) Bounded by the following 225 points (4,517 ac; 1,828 ha):
304411, 1562555; 304424, 1562519; 304395, 1562481; 304302, 1562446;
304273, 1562406; 304249, 1562358; 304254, 1562282; 304261, 1562234;
304267, 1562190; 304322, 1562154; 304363, 1562125; 304393, 1562154;
304450, 1562187; 304496, 1562219; 304553, 1562195; 304591, 1562252;
304677, 1562222; 304751, 1562222; 304756, 1562184; 304707, 1562097;
304732, 1562065; 304778, 1562078; 304848, 1562116; 304883, 1562133;
304897, 1562100; 304919, 1562054; 304965, 1562055; 305014, 1562130;
305027, 1562070; 305087, 1562070; 305138, 1562106; 305178, 1562184;
305273, 1562139; 305332, 1562082; 305502, 1562089; 305578, 1562186;
305634, 1562202; 305663, 1562153; 305654, 1562055; 305625, 1562051;
305559, 1561906; 305499, 1561766; 305502, 1561677; 305536, 1561661;
305583, 1561645; 305628, 1561651; 305657, 1561733; 305750, 1562039;
305797, 1562046; 305851, 1562027; 305884, 1561946; 305962, 1561919;
306000, 1561908; 306049, 1561932; 306083, 1561909; 306124, 1561894;
306125, 1561840; 306152, 1561740; 306149, 1561664; 306171, 1561612;
306196, 1561564; 306331, 1561523; 306475, 1561523; 306637, 1561536;
306678, 1561599; 306697, 1561618; 306795, 1561601; 306862, 1561696;
306865, 1561764; 306854, 1561781; 306837, 1561785; 306821, 1561831;
306726, 1561820; 306597, 1561737; 306383, 1561737; 306312, 1561775;
306280, 1561824; 306280, 1561867; 306328, 1561986; 306326, 1562043;
306369, 1562146; 306348, 1562193; 306359, 1562248; 306396, 1562413;
306211, 1562495; 306212, 1562642; 306491, 1562590; 306893, 1562575;
307497, 1563122; 307570, 1563395; 307632, 1563500; 307765, 1563576;
307881, 1563606; 307963, 1563657; 308014, 1563772; 308065, 1564029;
308062, 1564310; 308088, 1564565; 308044, 1564754; 307833, 1564944;
307768, 1565047; 307819, 1565112; 307805, 1565168; 307749, 1565378;
307765, 1565443; 307822, 1565486; 307811, 1565570; 307779, 1565654;
307817, 1565697; 307825, 1565828; 307842, 1565852; 307741, 1565909;
307639, 1565920; 307442, 1565987; 307386, 1566039; 307223, 1566107;
307152, 1566137; 307112, 1566137; 307082, 1566183; 307047, 1566199;
306955, 1566199; 306887, 1566191; 306824, 1566142; 306643, 1566020;
306544, 1565957; 306401, 1565931; 306247, 1565886; 306225, 1565841;
306113, 1565820; 306065, 1565846; 305956, 1565740; 305864, 1565621;
305851, 1565381; 305732, 1565386; 305724, 1565275; 305583, 1565276;
305305, 1565376; 305244, 1565424; 305104, 1565593; 304938, 1565657;
304768, 1565694; 304538, 1565717; 304173, 1565710; 304059, 1565694;
303985, 1565704; 303930, 1565725; 303903, 1565726; 303881, 1565697;
303879, 1565686; 303866, 1565617; 303819, 1565548; 303760, 1565524;
303670, 1565498; 303545, 1565484; 303504, 1565453; 303445, 1565416;
303355, 1565352; 303191, 1565289; 303022, 1565141; 302927, 1565120;
302874,
[[Page 62987]]
1565088; 302601, 1565117; 302527, 1565140; 302218, 1565153; 302086,
1565142; 301948, 1565092; 301810, 1565044; 301728, 1565024; 301675,
1565037; 301588, 1565018; 301416, 1565032; 301326, 1565030; 301284,
1565055; 301215, 1564939; 301207, 1564880; 301178, 1564669; 301199,
1564611; 301215, 1564529; 301236, 1564468; 301284, 1564460; 301363,
1564476; 301459, 1564476; 301604, 1564444; 301705, 1564365; 301734,
1564277; 301781, 1564145; 301827, 1564059; 301898, 1564026; 301972,
1563986; 302078, 1563923; 302144, 1563891; 302215, 1563817; 302318,
1563661; 302371, 1563526; 302605, 1563264; 302705, 1563179; 302736,
1563065; 302743, 1562848; 302859, 1562481; 302916, 1562366; 302961,
1562293; 302983, 1562274; 303027, 1562300; 303093, 1562406; 303115,
1562459; 303159, 1562565; 303190, 1562612; 303214, 1562638; 303250,
1562687; 303323, 1562713; 303478, 1562733; 303626, 1562749; 303778,
1562811; 303847, 1562837; 303900, 1562902; 303986, 1562937; 304081,
1562943; 304196, 1562928; 304284, 1562884; 304280, 1562804; 304302,
1562749; 304315, 1562704; 304363, 1562636; 304368, 1562613; 304379,
1562567.
(7) Bounded by the following nine points (9 ac; 3 ha): 303885,
1562540; 303916, 1562411; 303966, 1562370; 304088, 1562398; 304081,
1562449; 304077, 1562587; 304072, 1562590; 303992, 1562579; 303895,
1562564.
(C) Subunit B-2 (365 ac; 148 ha) consists of the following 64
boundary points: 308173, 1567760; 308132, 1567750; 308105, 1567693;
308088, 1567642; 308013, 1567625; 307908, 1567625; 307634, 1567679;
307580, 1567659; 307475, 1567659; 307410, 1567632; 307391, 1567599;
307208, 1567603; 307154, 1567586; 306999, 1567537; 307000, 1567462;
306988, 1567448; 306749, 1567420; 306700, 1567489; 306815, 1567568;
307027, 1567721; 307024, 1567751; 307254, 1567843; 307310, 1567846;
307444, 1568042; 307502, 1568160; 307586, 1568258; 307614, 1568414;
307732, 1568533; 307837, 1568655; 307942, 1568733; 307986, 1568682;
308071, 1568641; 308190, 1568658; 308312, 1568709; 308444, 1568763;
308559, 1568814; 308634, 1568872; 308630, 1568950; 308684, 1568980;
308810, 1568956; 308942, 1569004; 309033, 1569041; 309095, 1569049;
309113, 1568883; 309233, 1568887; 309213, 1568855; 309372, 1568655;
309345, 1568604; 309386, 1568509; 309416, 1568424; 309399, 1568380;
309335, 1568424; 309288, 1568401; 309243, 1568452; 309196, 1568431;
309108, 1568428; 309054, 1568428; 308968, 1568389; 308922, 1568387;
308909, 1568356; 308422, 1568364; 308411, 1567945; 308285, 1567960;
308240, 1567738.
(D) Note: Map 3 showing Unit B for Mariana crow follows:
BILLING CODE 4310-55-P
[[Page 62988]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.004
* * * * *
Guam Micronesian Kingfisher (Halcyon cinnamomina cinnamomina)
(1) The critical habitat unit for the Guam Micronesian kingfisher
is depicted for the Territory of Guam on the maps below.
(2) The primary constituent elements required by the Guam
Micronesian kingfisher for the biological needs of foraging,
sheltering, roosting, nesting, and rearing of young are found in areas
that support limestone, secondary, ravine, swamp, agricultural, and
coastal forests composed of native and introduced plant species. These
forest types include the primary constituent elements of:
(i) Closed canopy and well-developed understory vegetation; large
(approximately 43 cm (17 in) diameter at breast height), standing dead
trees (especially Tristiropsis obtusangula (faniok), Pisonia grandis
(umumu), Artocarpus spp. (breadfruit), Ficus spp. (fig), and Cocos
nucifera (coconut palm)); mud nests of Nasutitermes spp. termites; and
root masses of epiphytic ferns for breeding;
(ii) Sufficiently diverse structure to provide exposed perches and
ground surfaces, leaf litter, and other substrates that support a wide
range of vertebrate and invertebrate prey species for foraging
kingfishers; and
(iii) Sufficient overall breeding and foraging area to support
kingfisher territories of approximately 25 ac (10 ha) each.
(3) Critical habitat does not include existing features and
structures within the boundaries of the mapped units, such as
buildings, roads, aqueducts, antennas, water tanks, agricultural
fields, paved areas, lawns, and other urban landscaped areas not
containing one or more of the primary constituent elements.
(4) The critical habitat unit is described below. Coordinates are
in UTM Zone 55 with units in meters using North American Datum of 1983
(NAD83) / World Geodetic System 1984 (WGS 84).
(i) Note: Map 1-General Location of the Guam Micronesian
Kingfisher Unit--follows:
[[Page 62989]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.005
(ii) Guam, Guam Micronesian kingfisher (376 ac; 152 ha):
(A) Unit consists of the following nine boundary points: 267358,
1509113; 267338, 1509107; 267277, 1509113; 271077, 1508881; 271071,
1508878; 270766, 1509058; 269030, 1510105; 268659, 1510129; 267697,
1509376.
(B) Note: Map 2 showing Guam Micronesian Kingfisher Unit
follows:
[[Page 62990]]
[GRAPHIC] [TIFF OMITTED] TR28OC04.006
* * * * *
Dated: October 18, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-23648 Filed 10-27-04; 8:45 am]
BILLING CODE 4310-55-C